United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge
Patrick Aiyewa pled guilty to one count of conspiracy to
commit bank fraud, in violation of 18 U.S.C. § 1349, and
to one count of aggravated identity theft, in violation of 18
U.S.C. §§ 1028A and 2. This Court sentenced him to
a 39 month term of imprisonment and three years of supervised
release, and ordered him to pay $20, 957.43 in restitution.
See Judgment (Doc. # 82). This case is before the
Court on Aiyewa's motion to vacate, set aside, or correct
his sentence (Doc. # 90), the government's response (Doc.
# 105), and Aiyewa's reply (Doc. # 112). Having carefully
considered the pleadings, all the arguments and authorities
submitted by the parties, and the entire record, the Court is
of the opinion that the Aiyewa's motion should be denied
in part, and that an evidentiary hearing should be held as to
one of Aiyewa's claims for relief.
was indicted on three counts pertaining to a scheme to
install skimming devices on ATMs to steal ATM users'
account information. Aiyewa then used that information to
purchase prepaid debit cards. Aiyewa pled guilty to one count
of conspiracy to commit bank fraud, and one count of
aggravated identity theft.
Applicable Legal Standards
brings this motion under 28 U.S.C. § 2255, which
provides for relief “for errors that occurred at trial
or sentencing.” Jeffers v. Chandler, 253 F.3d
827, 830 (5th Cir. 2001). A movant may obtain
relief by showing
that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack . . . .
28 U.S.C.A. § 2255(a).
motion asserts four claims of ineffective assistance of
counsel. In addition, one of the claims asserts that his
guilty plea was not knowing and voluntary, and lacks a
first claim for relief, Aiyewa contends that there was no
factual basis for the charge of aggravated identity theft,
and that his counsel was ineffective for failing to oppose
the inclusion of this count in the plea agreement.
preliminary matter, Aiyewa's plea agreement expressly
waives his right to collaterally attack his sentence or
conviction under section 2255. See Plea Agreement
(Doc. # 57) at 3-4. Aiyewa now argues that the agreement is
ambiguous and, under established principles of contract law,
the alleged ambiguity should be construed against the
drafter, i.e., the government.
agreement sets out the statutes giving Aiyewa the right to
appeal a conviction or sentence, and to collaterally attack a
conviction or sentence. Id. The agreement then
Defendant knowingly and voluntarily waives the right to
appeal or “collaterally attack” the conviction
and sentence, except that Defendant does not waive the right
to raise a claim of ineffective assistance of counsel on
direct appeal, if otherwise permitted, or on collateral