United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
STARRETT, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant H. Claiborne
Frazier's Motion to Vacate Under 28 U.S.C. § 2255
(“Motion to Vacate”)  and Motion for
Reconsideration . After considering the submissions of
the parties, the record, and the applicable law, the Court
finds that these motions are not well taken and should be
H. Claiborne Frazier (“Defendant”) entered a
guilty plea in this action on September 16, 2013. As part of
this plea, he waived all rights to direct appeal and
post-conviction relief with limited exceptions. He was
sentenced on March 7, 2014, after a two-day sentencing
hearing. The total offence level found by the Court at the
sentencing was 31 which provided for a sentencing range of
108 to 135 months of custody based on his criminal history
category of 1. He was sentenced to a term of 60 months which
was a significant downward variance.
MOTION TO VACATE 
the grounds Defendant raises in his Motion to Vacate
 have been waived under his Plea Agreement ,
which contains a waiver of his right to seek post-conviction
relief under § 2255. (See Plea Agreement 
at ¶ 7.b.) Such waivers are valid as long as they are
made knowingly and voluntarily. United States v.
Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). Waivers of
post-conviction relief, however, may not apply to some, but
not all, claims of ineffective assistance of counsel.
United States v. White, 307 F.3d 336, 339 (5th Cir.
2002). For ineffective assistance of counsel claims to not be
barred by waivers of post-conviction relief, they must allege
that the ineffective assistance either rendered the waiver
involuntary or that he received ineffective assistance at
because the Fifth Circuit has already considered and decided
on direct appeal some of the issues Defendant now attempts to
raise on post-conviction relief, relief cannot be granted on
those issues. Moore v. United States, 598 F.2d 439,
441 (5th Cir. 1979).
these precedents in mind, the Court analyzes each of the
grounds raised by Defendant.
Ground One: Plea Agreement was not knowingly and voluntarily
Claim 1.1: Defendant did not understand the
argues that he did not understand that, even though the
Government has conceded that it would not use any of his
conduct related to Travelers in the factual basis in his plea
hearing, that they could still use it at sentencing as
of all, the Fifth Circuit has already held on Defendant's
direct appeal that the plea agreement specifically allowed
for the full amount of loss to be introduced as relevant
conduct. See United States v. Frazier, 644
F.App'x 362, 363 (5th Cir. 2016). Second of all, in a
letter to Defendant dated the day before he signed the plea
agreement, Drew Martin, Defendant's trial cousel,
specifically advised him that, even if the Government agreed
to limit the factual basis of his plea to the overt acts
towards the banks and not mention anything related to
Travelers, it could still use the Travelers loss at
sentencing as related conduct. (See Martin Affidavit
 at pp. 11-12.) Finally, at the plea hearing, Defendant
affirmed that he understood that other relevant conduct could
be considered at sentencing. (See Plea Hearing
Transcript  at 21:6-9.)
on the record, it is clear that Defendant was well-aware that
relevant conduct, including that related to Travelers, could
be used at sentencing, and still knowingly and voluntarily
entered in the plea agreement. Therefore, the Court will not
grant relief on this basis.
Claim 1.2: Defendant unaware he would be ...