United States District Court, W.D. Virginia, Roanoke Division
REPORT AND RECOMMENDATION
JOEL C. HOPPE, Magistrate Judge.
Martha Jo Landgrebe, a federal inmate proceeding pro se, filed a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence ("Petition"). ECF No. 50. In the Petition, Landgrebe asserts that (1) her five-year prison sentence violates the rule announced in Alleyne v. United States , (2) her two sentencing enhancements were "inappropriate double punishment, " and (3) her attorney was ineffective because he did not explain or object to those enhancements. The Government filed a motion to dismiss to which Landgrebe has responded. The matter is before me by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 60.
Having considered the parties' filings, the criminal case record, and the applicable law, I find that Landgrebe knowingly and voluntarily waived her right to collaterally attack her sentence on the first two grounds when she pled guilty with a written agreement, and that the existing record conclusively shows that Landgrebe is not entitled to relief on her third claim.
I. Standard of Review
A prisoner claiming the right to be released from a federal sentence must show that the district court did not have jurisdiction to impose the sentence, the sentence was imposed in violation of the Constitution or laws of the United States, the sentence exceeded the maximum penalty allowed by law, or the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a)-(b); Michel v. United States, Nos. 5:06cr41, 5:10cv80281, 2011 WL 767389, at *1 (W.D. Va. Feb. 25, 2011) (Conrad, C.J.). The prisoner ultimately must prove her grounds for relief by a preponderance of the evidence. United States v. White, 366 F.3d 291, 297 (4th Cir. 2004).
On the Government's motion to dismiss, however, the court determines only whether "the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); accord White, 366 F.3d at 296-97. Summary dismissal is inappropriate when the prisoner alleges facts that, if true, would entitle her to relief on her particular claim. See White, 366 F.3d at 297. The court may not reject the prisoner's factual allegations unless they are "palpably incredible" or "patently frivolous or false" when viewed against the whole record . Id. The court does not weigh evidence, consider credibility, or resolve disputed issues-it decides only whether the prisoner's filings state a claim for relief under section 2255. See United States v. Stokes, 112 F.Appx. 905, 906 (4th Cir. 2004) (citing Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970)).
A grand jury sitting in the Western District of Virginia indicted Landgrebe and a codefendant on January 17, 2013. See Indictment, ECF No. 1. Landgrebe was charged in four of the five counts: (1) knowingly and willfully conspiring to manufacture at least 50 grams of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B); (2) knowingly and intentionally manufacturing, or attempting to manufacture, at least 50 grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); (3) creating a substantial risk of harm to human life while knowingly and intentionally manufacturing and attempting to manufacture methamphetamine, in violation of 21 U.S.C. § 858; and (4) knowingly and intentionally manufacturing and attempting to manufacture methamphetamine on a "premises in which an individual under the age of 18 was present and resided, " in violation of 21 U.S.C. § 860a. Id. at 1-3. The Court appointed counsel to represent Landgrebe on February 6, 2013.
Landgrebe and the Government entered into a written plea agreement. See Plea Agmt. 1, Apr. 9, 2013, ECF No. 33. Landgrebe would plead guilty to the drug conspiracy charged in Count One, and the Government would move at sentencing to dismiss Counts Two, Three, and Four. See id. at 2. The parties also agreed to recommended that the Court sentence Landgrebe to five years in prison, which was the mandatory minimum term of incarceration for Count One under 21 U.S.C. §§ 841(b)(1)(B) and 846 (2012). See id. at 1, 3.
On April 9, 2013, Landgrebe appeared with counsel for a change-of-plea hearing before United States District Judge Samuel G. Wilson. See generally Plea Hr'g Tr. 1-24, ECF No. 54. Judge Wilson asked Landgrebe if she understood the terms of her written plea agreement, the elements of the offense charged, the mandatory minimum and potential maximum penalties she faced if convicted of that offense, and all of the rights she was giving up by pleading under the agreement, including her right to collaterally attack her sentence except on certain grounds. See id. at 9 (terms); id. at 11-12 (elements); id. at 12-13 (penalties); id. at 16-18 (waiver). Landgrebe testified that she understood the Court's admonishments and wanted to plead guilty. See generally id. at 9-21. Judge Wilson accepted Landgrebe's plea of guilty to the offense charged in Count One. Id. at 22.
On August 14, 2013, Judge Wilson sentenced Landgrebe to five years in prison followed by seven years on supervised release. See Sent. Hr'g Tr. 7-8, ECF No. 55; Judgment 1, 3, ECF No. 44. Counts Two, Three, and Four were dismissed per the agreement. The Court entered the judgment of conviction on August 15, 2013, and Landgrebe did not appeal.
Landgrebe timely filed this motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. The Government moved to dismiss her Petition on August 12, 2014, ECF No. 56, and Landgrebe responded on August 24, 2014, ECF No. 58. The motion to dismiss is ripe for review and can be resolved on the existing record. See 28 U.S.C. § 2255(b) (the district court may dismiss a 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief"); United States v. Ray, 547 F.Appx. 343, 345 (4th Cir. 2013) (per curiam) (citing United States v. Witherspoon, 231 F.3d 923, 926-27 (4th Cir. 2000)) (noting that an evidentiary hearing is required if the prisoner presents a "colorable" claim for relief "showing disputed facts beyond the record or when a credibility determination is necessary in order to resolve the issue").
Landgrebe's Presentence Report ("PSR") included a two-level enhancement for possessing a firearm and a six-level enhancement for endangering a minor. See PSR 6, ECF No. 47. Landgrebe argues that those enhancements were "inappropriate double punishment" because "two [d]efendants were sep[a]rately sentenced for the same crime, " and that her attorney was ineffective because he did not explain or object to those enhancements. 2255 Pet. 4. She also argues that her sentence is unlawful under Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013) (holding that any fact that triggers a mandatory minimum sentence is an "element" of the underlying offense). The Government responds that Landgrebe knowingly and voluntarily waived her right to ...