IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA §

§

VS. § NO. 3-05-CR-0293-H 

§ NO. 3-06-CV-1039-H 

MATTHEW HARVEY §

§

Defendant. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Defendant Matthew Harvey, appearing pro se, has filed a motion to correct, vacate, or set

aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the motion should

be denied.

I.

Defendant pled guilty to one count of theft or receipt of stolen mail in violation of 18 U.S.C.

§ 1708. Punishment was assessed at 24 months confinement followed by supervised release for a

period of three years. No appeal was taken. Instead, defendant collaterally attacks his sentence

under 28 U.S.C. § 2255.

II.

In multiple grounds for relief, defendant complains that the district court: (1) denied him a

two or three level reduction for acceptance of responsibility; (2) incorrectly determined the impact

on potential victims or the amount of loss involved; and (3) imposed a sentence in excess of that

recommended by the probation officer.

These claims may be summarily dismissed for at least two reasons. First, as part of the plea

agreement in this case, defendant waived his right to appeal or to seek post conviction relief. (See

 

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1

 Although defendant reserved the right to appeal a sentence exceeding the statutory maximum or an

arithmetic error at sentencing, and to challenge the voluntariness of his guilty plea or bring a claim based on ineffective

assistance of counsel, none of those exceptions are at issue in this case.

Plea Agr., 12/15/05 at 4, ¶ 10).1 Such a waiver is valid and enforceable if informed and voluntary.

See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994), citing United States v. Baty, 980 F.2d

977, 979 (5th Cir. 1992), cert. denied, 113 S.Ct. 2457 (1993). Here, defendant does not allege that

his guilty plea was involuntary or that he did not understand consequences of his waiver. For that

reason alone, defendant is not entitled to post-conviction relief. 

Even if these claims were not waived, none of the issues presented are cognizable under 28

U.S.C. § 2255. Post-conviction relief under section 2255 is generally limited to questions of

constitutional or jurisdictional magnitude. See United States v. Shaid, 937 F.2d 228, 231 (5th Cir.

1991), cert. denied, 112 S.Ct. 978 (1992). Other types of claims cannot be raised for the first time

on collateral review unless the defendant shows that the error could not have been presented on

direct appeal and, if condoned, would result in a complete miscarriage of justice. United States v.

Pierce, 959 F.2d 1297, 1301 (5th Cir.), cert. denied, 113 S.Ct. 621 (1992). A misapplication of the

sentencing guidelines, as well as the other sentencing errors cited by defendant in his motion, do not

give rise to constitutional issues. See United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir.

1998). And although the waiver contained in the plea agreement prevented defendant from raising

these issues on direct appeal, none of the claims involve fundamental error resulting in a complete

miscarriage of justice. Id., citing United States v. Smith, 844 F.2d 203, 205 (5th Cir. 1988).

Consequently, these grounds for relief should be overruled.

RECOMMENDATION

It plainly appears from the face of the motion and the record of prior proceedings that

defendant is not entitled to relief. Accordingly, his motion to correct, vacate, or set aside sentence

 

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should be summarily denied. See Rule 4(b), Rules Governing Section 2255 Cases.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: June 19, 2006. 

 

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