United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for United States; Donald F. Samuel, Atlanta,
Georgia, for Defendant.
P. Jones United States District Judge
defendant has filed a motion seeking relief under 28 U.S.C.
§ 2255. The United States has filed a motion to dismiss,
and the motion is ripe for decision. For the reasons stated,
I will grant the motion to dismiss and dismiss the §
defendant was sentenced by this court on January 5, 2017, to
a total term of 156 months imprisonment after pleading guilty
pursuant to a written Plea Agreement to conspiring to possess
with the intent to distribute 500 grams or more of a mixture
or substance containing methamphetamine, in violation of 21
U.S.C. §§ 841(b)(1)(B), 846. The Sentencing
Guidelines advisory range was 97 to 121 months imprisonment,
which was recommended jointly by the parties. However, the
court sentenced Rainey to 156 months, focusing on his
substantial history of drug offenses. After sentencing,
Rainey noted an appeal which was dismissed, the court of
appeals finding Rainey had waived his right to appeal.
United States v. Rainey, No. 17-4026 (4th Cir. Oct.
§ 2255 motion, the defendant contends that his sentence
was not reasonable, violated the Due Process Clause, and was
cruel and unusual punishment in violation of the Eighth
state a viable claim for relief under § 2255, a
defendant must prove: (1) that his sentence was
“imposed in violation of the Constitution or laws of
the United States”; (2) that “the court was
without jurisdiction to impose such sentence”; or (3)
that “the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). The movant bears the
burden of proving grounds for a collateral attack by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958).
extraordinary circumstances, “allegations in a §
2255 motion that directly contradict the petitioner's
sworn statements made during a properly conducted Rule 11
colloquy are always palpably incredible and patently
frivolous or false.” United States v.
Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (internal
quotation marks omitted). An appellate waiver is valid if the
defendant knowingly agreed to the waiver. United States
v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012). A
defendant who waives his right to appeal a guilty plea
“retains the right to obtain appellate review of his
sentence on certain limited grounds.” United States
v. Attar, 38 F.3d 727, 732 (4th Cir. 1994). Those
“limited grounds” include the Sixth Amendment
right to counsel and a claim that the defendant's
sentence exceeds the statutory maximum. United States v.
McCoy, 895 F.3d 358, 363 (4th Cir. 2018).
claims have been waived, and his sentence cannot be
collaterally attacked. In his Plea Agreement, Rainey
acknowledged that he had waived the right to collaterally
attack his sentence other than to raise a claim of
ineffective assistance of counsel. Plea Agreement 9, ECF No.
391. In his Motion to Vacate, Rainey acknowledges that he
signed an appeal waiver and a waiver of collateral attack.
2255 Mot. 4-5, ECF No. 777. During his plea hearing, Rainey
indicated that he understood he was waiving the right to
collaterally attack the judgment and sentence that the court
would impose. Plea Hr'g Tr. 15, ECF No. 704. Rainey also
admitted that he had fully discussed the Plea Agreement with
his attorney. Id. at 9. Rainey has not offered any
evidence to show that his § 2255 motion should not be
barred by his waiver of his right to collateral attack his
claim is also procedural defaulted. When Rainey appealed his
sentence, he did not raise the constitutional claims that he
raises in this petition. Federal prisoners are barred from
raising claims on collateral review that could have been
raised on direct appeal. See Davis v. United States,
417 U.S. 333, 345 (1974). In order to raise a procedurally
defaulted claim, the defendant must show cause and prejudice
or that he is actually innocent. Bousley v. United
States, 523 U.S. 614, 622 (1998). Rainey has not offered
any evidence to support either exception.
his claims had not been waived and procedurally defaulted,
Rainey's § 2255 motion would fail on the merits.
Rainey attacks his sentence because it exceeded the advisory
guideline range. However, his sentence does not exceed the
statutory maximum. Prior to sentencing, Rainey was informed
about the maximum potential sentence. During his plea
hearing, the court told him that the maximum possible
sentence was 40 years imprisonment. Plea Hr'g Tr. at
16-17. During that same hearing, the court informed him that
he could receive a sentence greater than that recommended by
the guidelines or the parties. Id. at 18-19.
Rainey claims that his sentence is unconstitutional, he does
not offer any support for the proposition that a sentence
exceeding the guidelines violates either the Fifth or Eighth
Amendments. In order for a sentence to violate the Eighth
Amendment, it must be grossly disproportionate to the crime.
United States v. Cobler, 748 ...