United States District Court, S.D. New York
DECISION AND ORDER
RICHARD M. BERMAN, U.S.D. JUDGE
I.
Background
On
April 29, 2014, Papis Djeme ("Petitioner" or
"Djeme") pled guilty to conspiracy to import
cocaine in violation of 21 U.S.C. § 960(b)(3). (See
Transcript ("Tr."), dated Apr. 29, 2014.) The Court
determined that Djeme's offense level was
37;[1]
his Criminal History Category was I; and his sentencing
Guidelines Range was 210 to 262 months.[2] (See Tr., dated
Sept. 3, 2014, at 7.) On September 3, 2014, Djeme was
sentenced to 78 months of imprisonment (or 132 months less
than the lowest end of his Guidelines Range) followed by a
term of three (3) years of supervised release. (See Judgment
and Commitment Order, dated Sept. 3, 2014, at 2-3.)
By
Petition, dated June 23, 2016, and Reply dated March 10,
2017, Petitioner, proceeding pro se, has sought to vacate his
conviction, presumably pursuant to 28 U.S.C. § 2255
("2255 Petition" and "2255 Reply",
respectively). Petitioner argues that his "2-level
enhancement for firearms possession does not, post-Johnson
[Johnson v. United States. 135 S.Ct. 2551 (2015)],
qualify as a 'crime of violence.' Therefore,
Petitioner is now innocent of the offense, and his conviction
is void." (Petition at 2.)
On
October 6, 2016, the Government submitted a letter
("Govt Opp'n") opposing Djeme's Petition,
and arguing that "Johnson has no impact whatsoever on
Djeme's guidelines calculation or sentence. Accordingly]
the Petition should be denied." (Govt Opp'n at 1.)
The Government points out that: "In Johnson, the Supreme
Court held that the residual clause of the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. §
924(e)(2)(B), which defined 'crime of violence' to
include any crime that 'otherwise involves conduct that
presents a serious potential risk of physical injury to
another, ' violated the Fifth Amendment because it was
impermissibly vague. Djeme was not charged with violating 18
U.S.C. § 924(e)(2)(B), nor was his sentencing guidelines
calculation impacted by any prior convictions for crimes of
violence." (Govt Opp'n at 1.)
On
October 12, 2016, Lawrence Bader, CJA counsel for Djeme in
the underlying proceeding, submitted a letter stating:
"Upon reviewing Mr. Djeme's petition, at this time I
am unable to advocate a position with respect to Mr.
Djeme's petition that is consistent with my professional
obligations."
For
the reasons set forth below, Djeme's Petition is
respectfully denied.[3]
II.
Legal Standard
"In
general, a defendant's knowing and voluntary waiver of
his right to appeal a sentence within [or below] an agreed
guideline range is enforceable." United States v.
Rosa, 123 F.3d 94, 97 (2d Cir. 1997). The waiver may
include both the right to a direct appeal and the right to
bring a collateral attack under 28 U.S.C. § 2255.
See Garcia-Santos v. United States, 273 F.3d 506,
509 (2d Cir. 2001) ("We have long enforced waivers of
direct appeal rights in plea agreements, even though the
grounds for appeal arose after the plea agreement was entered
into . . . The reasons for enforcing waivers of direct appeal
in such cases lead us to the same conclusion as to waivers of
collateral attack under § 2255.")
Collateral
relief under 28 U.S.C. § 2255 is available "only
for a constitutional error, a lack of jurisdiction in the
sentencing court, or an error of law or fact that constitutes
'a fundamental defect which inherently results in a
complete miscarriage of justice.'" United States
v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill
v. United States, 368 U.S. 424, 428 (1962)).
"[T]he
submissions of a pro se litigant must be construed liberally
and interpreted to raise the strongest arguments that they
suggest." Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal
quotation marks omitted).
III.
Analysis
Petitioner
unequivocally waived his right to file this Petition.
Petitioner pled guilty pursuant to a plea agreement, dated
April 18, 2014 ("Plea Agreement"). In his plea
agreement, Djeme agreed to several waivers of appeal,
including the following: "It is agreed that (1) the
defendant will not file a direct appeal; nor bring a
collateral challenge, including but not limited to an
application under Title 28, United States Code, Section 2255
and/or 2241; nor seek a sentence modification pursuant to
Title 18, United States Code, Section 3582(c) of any sentence
within or below the Stipulated Guidelines Range of 210 to 262
months' imprisonment." (Plea Agreement at 4.) See
also, Tr., dated Apr. 29, 2014 at 18:15-25, 19:1-6, for the
following colloquy:
COURT: This plea agreement also contains what's called a
waiver by Mr. Djeme of the right to appeal in this case. It
says he agrees and waives his right to file a direct appeal
and he also waives his right to bring what's called a
collateral challenge, which includes but is not limited to
applications under 28 United States Code Sections 2255 and/or
2241. The plea agreement also includes a waiver of Mr.
Djeme's right to seek a sentence modification pursuant to
18 United States Code Section 3582(c). These waivers apply as
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