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UNITED STATES v. JOHNSON

March 7, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIAM JOHNSON, Defendant.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is William Johnson's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255. For the reasons stated below, the Petition is denied.

 BACKGROUND

 On April 10, 1992, William Johnson ("Johnson") pled guilty to five counts. Counts I, II, and V charged Johnson with being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g). Count III charged Johnson with using and carrying firearms in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). Count IV charged him with possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Johnson was sentenced to ten months incarceration to run concurrently on each of Counts I, II, IV, and V. He was also sentenced to sixty months incarceration on Count III, to run consecutive to the other counts. Johnson did not appeal his conviction or his sentence.

 In February 1993, Johnson submitted a pro se Petition for a Writ of Habeas Corpus. Johnson's Petition is largely incomprehensible. However, the court has been able to discern an attempt to allege the following claims as bases for habeas relief: (1) his plea of guilty was not voluntary; (2) this court abused its discretion in finding the defendant guilty; (3) the defendant did not have a "safe" opportunity to challenge the presentence investigation report ("PSI"); (4) the base offense level should have been zero as opposed to twelve; (5) no firearm was presented in evidence; (6) the court failed to resolve disputed sentencing factors as required by Guideline § 6A1.3; (7) the court improperly enhanced his sentence because he refused to assist the government; (8) the court erred by sentencing him to prison as opposed to probation; (9) the court erred in its relevant conduct determination for sentencing; (10) there was no probable cause for his arrest; (11) violations of Federal Rule of Criminal Procedure 32(c); and (12) grand jury irregularities under Federal Rule of Criminal Procedure 6(d).

 DISCUSSION

 The applicable legal framework for evaluating a petition pursuant to 28 U.S.C. § 2255 is well settled. Relief under § 2255 is limited to "an error of law that is jurisdictional, constitutional, or constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" Carreon v. United States, 578 F.2d 176, 179 (7th Cir. 1978) (quoting Davis v. United States, 417 U.S. 333, 94 S. Ct. 2298, 2305, 41 L. Ed. 2d 109 (1974)); Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991). Before the court decides whether a petitioner's claim meets this standard, it must first determine whether the claim asserted is made in a procedurally appropriate fashion. Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989).

 A § 2255 petitioner is barred from raising three types of issues: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the § 2255 petitioner demonstrates cause for procedural default as well as actual prejudice from the failure to appeal. United States v. Rodriguez, 792 F. Supp. 1113, 1114-15 (N.D. Ill. 1992) (citing Norris v. United States, 687 F.2d 899 (7th Cir. 1982)). However, a petitioner need not show prejudice when he demonstrates that he directed counsel to perfect an appeal and counsel failed to do so, or when counsel abandons the appeal. Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). Johnson has asserted neither of these factual scenarios and, therefore, must show both cause for and prejudice from his failure to raise any constitutional issues on direct appeal.

 Johnson is procedurally barred from raising all of his claims, including the voluntariness of his plea, because he failed to raise them on direct appeal, and he has made no showing cause for and prejudice from that failure. See Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir. 1992); Basile v. United States, 999 F.2d 274, 276-77 (7th Cir. 1993). Although a pro se submission is to be liberally construed, Blake v. United States, 841 F.2d 203, 205 (7th Cir. 1988), a court must respect the limitations on its power under a § 2255. See United States v. Springs, 988 F.2d 746, 748 (7th Cir. 1993). Even if his Petition can even be construed as attempting to demonstrate cause and prejudice, Johnson, at best, has done nothing more than state conclusory allegations. Conclusory allegations alone are insufficient to show the "cause" and "prejudice" necessary to overcome a procedural default. Oliver, 961 F.2d at 1341. Therefore, he is barred from raising his claims in this court.

 The fact that Johnson pleaded guilty to the charges, acts as an additional bar to claims that his conviction was unconstitutional. "Once a plea of guilty has been entered, nonjurisdictional challenges to the constitutionality of the conviction are waived and only the knowing and voluntary nature of the plea may be attacked." United States v. Brown, 870 F.2d 1354, 1358 (7th Cir. 1989).

 Even if the court were to entertain Johnson's claim that his guilty plea was involuntarily, he would not be entitled to relief. The standard for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970). The guilty plea "must be an intelligent act 'done with sufficient awareness of the relevant circumstances and likely consequences.'" McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 1446, 25 L. Ed. 2d 763 (1970) (quoting Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970). Guilty pleas are generally accorded finality. See Blackledge v. Allison, 431 U.S. 63, 97 S. Ct. 1621, 1627-28, 52 L. Ed. 2d 136 (1977). A defendant seeking to overturn his guilty plea bears the burden of persuasion as to its alleged involuntariness. United States v. Wildes, 910 F.2d 1484, 1486 (7th Cir. 1990).

 In accepting a guilty plea, the district court must comply with the requirements outlined in Federal Rule of Criminal Procedure 11. United States v. Suter, 755 F.2d 523, 525 (7th Cir. 1985). Rule 11(c)(1) sets forth procedures "designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary." McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 1170, 22 L. Ed. 2d 418 (1969) (footnote omitted). *fn1"

 Rule 11(c)(1) "expressly directs the district judge to inquire whether a defendant who pleads guilty understands the nature of the charge against him and whether he is aware of the consequences of his plea." United States v. Montoya, 891 F.2d 1273, 1292 (7th Cir. 1989). As a rule, failure to comply with Rule 11(c)(1) ...


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