The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
On April 18, 2008, petitioner Nancy DeRider, proceeding pro se, filed an amended motion pursuant to 28 U.S.C. § 2255 to vacate her sentence for the crimes of mail fraud (see 18 U.S.C. § 1341) and aggravated identity theft (see 18 U.S.C. § 1028A). (See Amended Motion; Dkt. No. 20.) The court has conducted a preliminary review of DeRider's amended motion in accordance with Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Upon such review, the court has determined that DeRider is not entitled to relief.
Pursuant to the Rules Governing Section 2255 Proceedings, the judge who receives a § 2255 motion to vacate must conduct a preliminary review. Following such review, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." See Rule 4, Rules Governing Section 2255 Proceedings for the United States District Courts, 28 U.S.C. foll. § 2255 [hereinafter "Rule 4"]. Thus, summary dismissal pursuant to Rule 4 is appropriate where the motion to vacate and the supporting papers conclusively show that the movant is not entitled to habeas relief. See Garcia Montalvo v. United States, 862 F.2d 425, 426-27 (2d Cir. 1988); Gonzalez v. United States, No. 07-cv-3571, 2007 WL 1988152, at *1 (S.D.N.Y. July 6, 2007); see also 28 U.S.C. § 2255(b) (providing for, inter alia, a hearing, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . .").
DeRider's amended motion is subject to summary dismissal on the grounds that she waived her right to appeal or collaterally attack her conviction and sentence. Under the terms of her Plea Agreement, DeRider waived "any and all rights . . . to appeal or collaterally attack her conviction and any sentence of imprisonment of fifty-seven (57) months or less, including any related issues with respect to the establishment of the advisory Sentencing Guidelines range or the reasonableness of the sentence imposed." (Plea Agreement at 12; Dkt. No. 4.)
It is well-settled that such a waiver of rights in a Plea Agreement is enforceable, provided the waiver was knowing and voluntary. See United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998) ("It is by now well-settled that a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable."); Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (enforcing waiver of the right to bring a petition under 28 U.S.C. § 2255). In addition to the requirement that the waiver be knowing and voluntary, "a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement." Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195-96 (2d Cir. 2002). In this case, DeRider does not contest the knowing and voluntary nature of the Plea Agreement, nor does she contest the validity of the Plea Agreement. Rather, her 28 U.S.C. § 2255 motion is directed at the length of the sentence imposed.*fn1 In the absence of an attack on the Plea Agreement, as opposed to the sentence, there is no basis for disregarding the waiver of rights contained in the Plea Agreement.*fn2 Accordingly, DeRider's 28 U.S.C. § 2255 petition must be dismissed.
Even if DeRider had not waived the right to collaterally attack her sentence, the court would dismiss the bulk of DeRider's claims due to her failure to raise them on direct appeal. Of the five grounds for relief which she asserts in her 28 U.S.C. § 2255 motion,*fn3 Ground One (misapplication of the sentencing guidelines), Ground Three (reasonableness of the sentence), Ground Four (violation of defendant's right to allocution), and Ground Five (cruel and unusual punishment) are procedurally barred. See Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007) ("In general, a claim may not be presented in a habeas petition where the petitioner failed to properly raise the claim on direct review.").*fn4
The procedural default bar "may be overcome only where the petitioner establishes either (1) 'cause' for the failure to bring a direct appeal and 'actual prejudice' from the alleged violations; or (2) 'actual innocence.'" Id. (citation omitted). As DeRider has pleaded guilty, and does not challenge that plea, she cannot establish "actual innocence." Nor can she establish "cause" for her failure to bring a direct appeal. First, "a waiver of appeal provision in a plea agreement d[oes] not constitute 'cause' for failing to take a direct appeal." Garcia-Santos, 273 F.3d at 508. Second, while DeRider argues that her attorney did not inform her of her right to appeal, this assertion is belied by DeRider's signature on the Plea Agreement, in which it is written that "[t]he Defendant acknowledges that, after consultation with defense counsel, she fully understands the extent of her rights to appeal . . . ." (Plea Agreement at 12; Dkt. No. 4.) Even assuming that her lawyer did not inform her of her rights, DeRider was informed by the court at sentencing of her "right to appeal this sentence under limited circumstances." (Record of Proceedings at 11; Dkt. No. 14.) Therefore, DeRider cannot establish cause for her failure to raise Grounds One, Three, Four, and Five on direct appeal.
Morever, even if DeRider could establish cause, she could not establish actual prejudice because her challenges to the sentence are baseless. First, there is no merit to her argument that the court relied on the wrong edition of the Guidelines Manual in sentencing her. See generally U.S. SENTENCING GUIDELINES MANUAL (2006). DeRider asserts that the court should have used the Guidelines Manual in effect in 2000, at the time her criminal conduct began. However, "[a] sentencing court generally is required to apply the Guidelines Manual in effect at the time of sentencing." United States v. Broderson, 67 F.3d 452, 456 (2d Cir. 1995). It is true that "where application of the Guidelines in effect at sentencing would result in a more severe sentence than the version in effect at the time of the commission of the offense, the Ex Post Facto Clause of Article I of the Constitution requires use of the earlier version of the Guidelines." Id. Even then, however, "[t]he last date of the offense, as alleged in the indictment, is the controlling date for ex post facto purposes." Id. Here, the Plea Agreement indicates that DeRider's criminal conduct began in 2000 and continued through November of 2006. (See Plea Agreement at 4-5.) Therefore, the court properly applied the 2006 Guidelines Manual.
Next, as to DeRider's challenge to the reasonableness of her sentence, the concerns she raises were brought to the court's attention prior to sentencing, and were considered by the court at that time. Specifically, in her Sentencing Memorandum, DeRider argued, in language that is quite similar to that used in her amended motion to vacate, that she "has endured significant hardships and difficulties," and that her crimes were motivated by "her financial difficulties and an overwhelming desire to provide for her immediate family." (Sentencing Memorandum at 1, 5-6; Dkt. No. 9.) Upon reconsideration of these arguments, and re-review of DeRider's Sentencing Memorandum, the government's Sentencing Memorandum, and the transcript of DeRider's sentencing, the court remains convinced that the ...