United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
Annie Wright (“Petitioner”) filed a pro se motion
to vacate, set aside or correct her sentence pursuant to 28
U.S.C. § 2255 [Docs. 1, 5] and a supporting memorandum
of law [Doc. 6]. The government has responded in opposition
to her motion [Doc. 8]. Petitioner then submitted a letter to
the Court seeking relief from her sentencing enhancement [No.
3:17-cr-68-02, Doc. 70], which the Court will construe as a
supplement to her § 2255 motion.
December 6, 2017, Petitioner pled guilty to one count of
aiding and abetting Hobbs Act robbery, in violation of 18
U.S.C. §§ 1951 and 2. On March 21, 2018, the Court
sentenced Petitioner to a term of imprisonment of 57 months,
to be followed by a three-year term of supervised release
[No. 3:17-cr-68-02, Doc. 49]. Petitioner did not file a
direct appeal of her conviction or sentence,  but timely filed
the instant petition for relief under § 2255 on January
15, 2019 [Doc. 1].
Standard of Review
obtain relief under 28 U.S.C. § 2255, a petitioner must
demonstrate “(1) an error of constitutional magnitude;
(2) a sentence imposed outside the statutory limits; or (3)
an error of fact or law ... so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003), cert. denied, 540 U.S. 1133 (2004)). A
petitioner “must clear a significantly higher hurdle
than would exist on direct appeal” and show a
“fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
4(b) of the Rules Governing Section 2255 Proceedings in the
United States District Courts requires a district court to
summarily dismiss a § 2255 motion if “it plainly
appears from the face of the motion, any attached exhibits,
and the record of the prior proceedings that the moving party
is not entitled to relief.” See also Pettigrew v.
United States, 480 F.2d 681, 684 (6th Cir. 1973)
(“A motion to vacate sentence under § 2255 can be
denied for the reason that it states ‘only bald legal
conclusions with no supporting factual
allegations.'”) (quoting Sanders v. United
States, 373 U.S. 1, 19 (1963)). If the motion is not
summarily dismissed under Rule 4(b), Rule 8(a) requires the
court to determine, after a review of the answer and the
records of the case, whether an evidentiary hearing is
required. If a petitioner presents a factual dispute, then
“the habeas court must hold an evidentiary hearing to
determine the truth of the petitioner's claims.”
Huff v. United States, 734 F.3d 600, 607 (6th Cir.
2013) (quoting Valentine v. United States, 488 F.3d
325, 333 (6th Cir. 2007)). An evidentiary hearing is not
required “if the petitioner's allegations cannot be
accepted as true because they are contradicted by the record,
inherently incredible, or conclusions rather than statements
of fact.” Valentine, 488 F.3d at 333 (quoting
Arredondo v. United States, 178 F.3d 778, 782 (6th
Court begins by noting that, in her plea agreement,
Petitioner explicitly waived the right to file a § 2255
motion, except for claims of ineffective assistance of
counsel or prosecutorial misconduct [No. 3:17-cr-68-02, Doc.
31 p. 6 ¶ 10(b)]. A defendant may waive any right, even
a constitutional right, if she does so knowingly and
voluntarily, and a waiver provision in a plea agreement is
enforceable. In re Acosta, 480 F.3d 421, 422 (6th
Cir. 2007); accord Davila v. United States, 258 F.3d
448, 450-52 (6th Cir. 2001); Watson v. United
States, 165 F.3d 486, 489 (6th Cir. 1999). Therefore, if
Petitioner understood the terms of the plea agreement and
made the waiver of her right to file a § 2255 motion
voluntarily and knowingly, the waiver is valid and
enforceable. See Slusser v. United States, 895 F.3d
437, 439 (6th Cir. 2018), cert. denied, 139 S.Ct.
there is little doubt that Petitioner knowingly and
voluntarily entered into this waiver provision in her plea
agreement. Although no transcript of the Court's change
of plea hearing is in the record, this Court recalls that it
verified, in testimony under oath by Petitioner, that she had
read the plea agreement or that the plea agreement had been
read to her, that she discussed the plea agreement with
counsel and understood all its provisions, that she had read
specifically paragraph 10(b) containing the waiver provision
or that it had been read to her, and that she had fully
discussed the waiver provision with her attorney. Moreover,
Petitioner has not asserted claims within the limited
category of claims where she retained a right to file a
§ 2255 motion, nor has she alleged any facts from which
the Court could plausibly infer these claims. Thus,
Petitioner knowingly and voluntarily waived her right to file
a § 2255 motion with few exceptions and she has not
asserted any claims within one of those exceptions.
assuming that Petitioner had not waived her right to
collaterally attack her conviction, she has not asserted a
valid claim for relief. In her first ground for relief [Doc.
5 at p. 4], Petitioner claims that her enhancement
“falls directly under the Supreme Court ruling that 18
U.S.C. § 16(b) and § 924(c)(3)(B) are
unconstitutionally vague.” In her supporting
memorandum, Petitioner argues that her sentence was enhanced
under 18 U.S.C. § 924(c)(1)(A) for possession of a
firearm in furtherance of a violent crime [Doc. 6 at p. 2].
Relying on the Supreme Court's opinion in Sessions v.
Dimaya, 138 S.Ct. 1204 (2018), Petitioner contends that
her conviction for brandishing a firearm during a crime of
violence must be set aside as unconstitutionally vague [Doc.
6 at pp. 1-3]. This argument is without merit.
forth in her plea agreement [No. 3:17-cr-68-02, Doc. 31 at p.
3 ¶ 4], Petitioner agreed that her sentence would be
enhanced pursuant to United States Sentencing Guideline
(“U.S.S.G.”) § 2B3.1(b)(2)(C), not pursuant
to 18 U.S.C. § 924(c). Application of this Guideline
enhancement is not predicated on whether an offense is
classified as a crime of violence. See U.S.S.G.
§ 2B3.1(b)(2). As the Respondent correctly notes,
Dimaya only invalidated the residual-clause
definition of “crime of violence” in 18 U.S.C
§ 16(b) as “unconstitutionally vague.” 138
S.Ct. at 1216. Dimaya did not address the definition
of “crime of violence” as used in the United