United States District Court, N.D. Mississippi, Oxford Division
SHARION AYCOCK, District Judge.
This matter comes before the court on the motion  of Quincy Martez Terry to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, along with its various amendments, memoranda, and supplements. As the dispositive issue in the case requires no further briefing, the court will rule upon the motion without a response from the government. For the reasons set forth below, the instant motion to vacate, set aside, or correct sentence will be dismissed as waived.
Standard for Relief Under 28 U.S.C. § 2255
There are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255; see United States v. Cates, 952 F.2d 149, 151 (5th Cir.1992). The scope of relief under § 2255 is consistent with that of the writ of habeas corpus. Cates, 952 F.2d at 151. Relief under 28 U.S.C. § 2255 is not available to test the legality of matters that should have been raised on appeal. United States v. Walling, 982 F.2d 447, 448-449 (10th Cir. 1992). A petitioner is barred from raising constitutional claims for the first time on collateral review unless he demonstrates a cause for failing to raise the issue on direct appeal and actual prejudice resulting from the error. United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992), cert. denied, 506 U.S. 1007 (1992); United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). The burden of showing "cause, " an "objective factor external to the defense, " rests with the petitioner. McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991). No other types of errors may be raised on collateral review unless the petitioner demonstrates that the error could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice. Pierce, 959 F.2d at 1301; Shaid, 937 F.2d at 232. In addition, if issues "are raised and considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a later collateral attack." Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979). Likewise, a motion brought under § 2255 cannot be used as a substitute for a direct appeal. See United States v. Addonizio, 442 U.S. 178 (1979). In general, relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of claims that could not have been raised on direct appeal. See United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994). The procedural posture of this case is set forth below.
The Plea Agreement
After several fits and starts regarding whether he would cooperate with the government in this case - and the extent of his cooperation - Quincy Martez Terry, under a plea agreement and plea supplement, pled guilty to conspiracy to distribute a controlled substance under 21 U.S.C. § 846. As part of the plea agreement, Terry waived the right to appeal or collaterally attack his conviction or sentence:
WAIVER OF ALL APPEALS AND COLLATERAL ATTACKS: Defendant hereby expressly waives any and all rights to appeal the conviction and/or sentence imposed in this case, and the manner in which sentence was imposed, on any ground whatsoever, including but not limited to the grounds set forth in 18 U.S.C. § 3742. Defendant also hereby expressly waives all rights to contest or collaterally attack the conviction and/or sentence, and the manner in which sentence was imposed, in any post-conviction proceeding, including but not limited to a motion brought pursuant to 28 U.S.C. § 2255. Defendant waives these rights in exchange for the concessions and recommendations made by the United States in this plea agreement.
Plea Agreement, ECF Doc. 141, ¶ 7. In paragraph 9 of the Plea Agreement, Terry attested:
ACKNOWLEDGMENTS: Apart from being advised of the applicability of the U.S. Sentencing Guidelines, and other than as set forth elsewhere in the plea documents, no promise or representation whatsoever has been made to defendant as to what punishment the Court might impose if it accepts the plea of guilty. The Defendant understands that any estimate of the probable sentencing range that he may have received from defense counsel, the government, or anyone else is a prediction, not a promise, and said prediction is not binding on the Court. It is understood that the matter of sentencing is within the sole discretion of the trial court. The Defendant acknowledges and understands that if the Court imposes a sentence greater than what he expects he will not be afforded an opportunity to withdraw his plea. This agreement fully reflects all promises, agreements, and understandings between the defendant and the United States Attorney. The Defendant's agreement is knowing, free, and voluntary, and not the product of force, threat, or coercion. The Defendant has discussed the terms of the foregoing agreement with his attorney and is satisfied with his attorney's advice. Being aware of all the possible consequences of his plea, the Defendant has decided to enter a plea of guilty, and is doing so because he is, in fact, guilty as affirmed by his signature below.
Plea Agreement, ¶ 9 (emphasis added).
The Change of Plea Hearing
At his change of plea hearing, Terry testified repeatedly that he was pleading guilty knowingly, intelligently, and voluntarily, and that no one had made threats or promises to induce him to do so. After establishing Terry's competency to enter a plea of guilty, the court engaged in a colloquy with him, advising him of the rights he would waive by pleading guilty, as well as the consequences. Plea Hearing Transcript, p. 4-8. As part of the colloquy, Terry acknowledged that: (1) he had the right to maintain his plea of not guilty (p. 4), (2) that he had ample opportunity to discuss the consequences of a guilty plea with his attorney (p. 5), (3) that he was satisfied with his attorney's representation (p. 5), (4) that his attorney represented his best interests in the case (p. 7), (5) that he had no questions about his rights in the case (p. 7), (6) that he had discussed his rights with his attorney (p. 7), and (6) that, understanding his rights, he wished to plead guilty (p. 7).
He also testified that he had signed the plea agreement and had discussed it with his attorney. Plea tr., p. 10-11. The Assistant United States Attorney then read the plea agreement into the record, including the provisions in which Terry waived his right to appeal and seek post-conviction collateral relief. Plea tr., p. 11-15. Terry agreed that he understood all provisions of the plea agreement. Plea tr., p. 15. Nonetheless, to ensure that Terry understood the appeal and post-conviction waivers, the court reviewed that provision in detail on the record:
[Court]: I want to draw your attention to Paragraph 7 on Page 2 of the plea agreement where you acknowledge that you expressly waive any and all rights to appeal this conviction and/or any sentence imposed, including any post-conviction or collateral attack upon the sentence. Do you understand that provision?
[Terry]: Not completely.
[Court]: You may confer with your attorney.
(CONFERRING OFF THE RECORD)
[Court]: Mr. Terry, do you - did you have an opportunity to discuss that ...