DANIEL HOVLAND, Chief Judge, District
Before the Court is Michael Sullivan's pro se Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, filed on March 21, 2005. On January 23, 2004, Sullivan pled guilty pursuant to a signed Plea Agreement to one count of possession of a firearm by convicted felon and one count of possession of a firearm by a person convicted of domestic violence. The parties stipulated that Sullivan's base offense level would be 20 under U.S.S.G. § 2K2.1. See Plea Agreement, ¶ 12. The Government agreed to recommend a two-level downward departure for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and a one-level downward departure for timely notification of intention to enter a guilty plea under U.S.S.G. § 3E1.1(b). See Plea Agreement, ¶ 15. Additionally, the Government agreed to recommend a sentence at the low end of the applicable Sentencing Guideline range.
The Presentence Investigation Report (PSR) corroborated the facts agreed upon by the parties in the Plea Agreement. The PSR established a base offense level of 20 and a three-level downward departure based on U.S.S.G. §§ 3E1.1(a) and (b), yielding a total adjusted offense level of 17. See PSR, p. 8. No sentencing enhancements were contemplated by the parties. The PSR classified Sullivan as a criminal history category V based on his eleven criminal history points. See PSR, pp. 9-12. Based on the total adjusted offense level of 17 and a criminal history category of V, the federal Sentencing Guideline range was 46-57 months. See PSR, p. 17.
On April 8, 2004, Sullivan was sentenced to 46 months of imprisonment which was at the low end of the federal Sentencing Guidelines. Sullivan's direct appeal to the Eighth Circuit was denied on July 4, 2004. See Docket No. 27.
This is Sullivan's second petition under 28 U.S.C. § 2255. His first petition was filed on September 28, 2004.
Sullivan raised the following as grounds for relief: (1) change of sentence after plea agreement; (2) coerced confession; (3) ineffective assistance of counsel; and (4) double jeopardy.
The Court dismissed the petition on October 21, 2004, because "Sullivan expressly waived his right to bring a Section 2255 motion challenging his conviction or sentence in his Plea Agreement." See Docket No. 34.
Sullivan's present petition asserts the following grounds for relief: (1) sentencing guidelines are unconstitutional; (2) an over-calculation of criminal history points and overstated criminal history category; (3) an unconstitutional enhancement of sentence originally agreed upon in initial plea agreement; and (4) violations of Sixth Amendment.
At the time of my sentencing, the guidelines were in place, and rather to risk being given a much lenghtier [sic] sentence by going to trial, I accepted the sentence. Concidering [sic] the circumstances of the crime I feel the sentence is much too harsh. My sentence was based mostly on my driving record which I believe is unconstitutional.
My criminal history points are consisted of me being given points for misdemeanor driving charges that I have never been given, or done, jail time for. I've also been given points for basically the same alleged at that I've never been found guilty of, or done any jail time for. Also, no felony driving violations are not relevant conduct. Eight of my criminal history points are from non felony driving charges, and three points are from a charge over fifteen years ago.
My sentence was enhanced by factors not presented in my indictment, nor disclosed to me intelligently by my attorney during the signing of my plea agreement. By the prosecution inducing me to sign a plea agreement, based upon an informal sentence computation that was neither accurate nor honored at the time of sentencing. I was induced to plead guilty under false pretenses. The original plea was 27-33 months.
The United States Supreme Court has made clear that the constitution protects against deprivation of liberty without due process and guaranteeing the right to trial and a jury determination that a person is guilty of every element of the crime which he is charged beyond a reasonable doubt which is the constitution.
To be clear, Sullivan does not raise a Sixth Amendment challenge under the recent United States Supreme Court decision of United States v. Booker, 543 ___ U.S. ___, 125 S.Ct. 738, 756 (2005) (reaffirming "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."). Sullivan merely contends that his criminal history category is somehow miscalculated or over represented. It is clear that neitherBooker, nor the related opinions of Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), offer any relief to Sullivan under the circumstances.
The Court has carefully reviewed the motion which is Sullivan's second petition for post-conviction relief. As before, the Court finds that Sullivan expressly waived his right to bring a Section 2255 motion challenging his conviction or sentence in his Plea Agreement. See Plea Agreement, ¶ 22. It is well-established in the Eight Circuit that such a waiver is fully enforceable. See United States v. Andis, 333 F.3d 886 (8th Cir. 2003);United States v. His Law, 85 F.3d 379 (8th Cir. 1996). Sullivan has also failed to obtain the appropriate certification from the Eighth Circuit Court of Appeals as required by 28 U.S.C. § 2255 for the filing of a second or successive petition. Accordingly, Sullivan's Section 2255 motion (Case No. C1-03-069, Docket No. 36; Case No. A1-05-046, Docket No. 1) is DISMISSED.
A second or successive petition must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255.
The Court again certifies that an appeal from the denial of this motion may not be taken in forma pauperis because such an appeal would be frivolous and cannot be taken in good faith.Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Based upon the entire record before the Court, a dismissal of the motion is not debatable, reasonably subject to a different outcome on appeal, or otherwise deserving of further proceedings.Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983). Therefore, a certificate of appealability will not be issued by the Court.
The Court of Appeals for the Eighth Circuit has opined that the district courts possess the authority to issue Certificates of Appealability under Section 2253(c). Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).
IT IS SO ORDERED.