U.S. v. DECKER

PAUL D. STICKNEY, United States District Judge.

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the United States District Court for the Northern District of Texas, Defendant's postjudgment motion in his criminal case has been referred to the United States Magistrate Judge. The conclusions and recommendation of the Magistrate Judge follow:

Defendant Donnie Lynn Decker, appearing pro se, filed a motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255. The Government filed a response. The Court concludes that Defendant knowingly and voluntarily waived his right to bring a § 2255 motion and recommends that the motion be denied.

Pursuant to a plea agreement, Defendant pled guilty to Count One of the indictment charging a violation of 18 U.S.C. § 922(g)(1) and 924(a)(2), possession of a firearm by a felon. Punishment was assessed at 16 months confinement followed by supervised release for a period of three years. No appeal was taken. Defendant then filed this motion under 28 U.S.C. § 2255.

Defendant challenges his conviction and sentence on five grounds: (1) he was arrested without a showing of his criminal history and was arrested twice on the same charge; (2) he was unlawfully detained without sufficient evidence; (3) the Texas Department of Public Safety Computerized Criminal History Summary sheet is incorrect; (4) the pawn shop records and ATF Form 4473 are incomplete and he did not sign the form; and (5) the fingerprints, signatures, and legal mail associated with this case are "in question." The Government argues that defendant waived his right to seek post-conviction relief as part of the plea agreement. Accordingly, this Court must examine the scope and validity of the waiver provision.

A defendant can waive his right to appeal and seek post-conviction relief as part of a plea agreement. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994); United States v. White, 307 F.3d 336, 339 (5th Cir. 2002). The waiver must be informed and voluntary. The trial court must ensure that the defendant fully understands his rights and the consequences of a waiver. Wilkes, 20 F.3d at 653, citing United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992), cert. denied, 113 S.Ct. 2457 (1993).

The plea agreement signed by Defendant contains a waiver of post-conviction remedies. The agreement provides, in relevant part:

The defendant hereby expressly waives the right to appeal his sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742, and the defendant further agrees not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255.

(Gov't Resp., Exh. A at 3-4, ¶ 8) (emphasis added). The District Court specifically discussed the waiver of appeal provision with Defendant at the rearraignment. (Rearr. 13). Defendant said he understood that he could not appeal or challenge his sentence in a motion for post-conviction relief except in "very limited circumstances." ( Id., Exh. C at 13) The exceptions are not at issue in this case.

Defendant does not claim that his guilty plea was involuntary, nor does he claim that he did not understand the waiver of appeal provision. It is clear from the record that Defendant was properly admonished before the trial court accepted his guilty plea and that the plea and waiver were knowingly, freely, and voluntarily made. As a result, neither the guilty plea nor the waiver provision are subject to challenge, and the Court need not consider Defendant's claims brought pursuant to 28 U.S.C. § 2255.

Defendant's motion to correct, vacate, or set aside sentence should be denied.

The United States District Clerk shall serve a true copy of these conclusions and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those parts of the conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, (1985). Additionally, any failure to file written objections to the proposed conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).