Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LAWUARY v. U.S.

April 24, 2002

CHARLIE LAWUARY, PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Richard Mills, United States District Judge

    OPINION

This cause is before the Court on Petitioner's petition under 28 U.S.C. § 2255.

BACKGROUND

On November 5, 1997, Petitioner was charged in a two-count indictment with possession of cocaine base (crack), with the intent to distribute, in violation of 21 U.S.C. § 841(a).

On May 11, 1997, Petitioner was arrested after officers conducted a search and discovered a baggie containing 21.3 grams of cocaine base located in Petitioner's overalls. Count I of the indictment charged Petitioner with possession of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B).
On August 24, 1997, Petitioner ran from a vehicle stopped for a traffic violation. Officers eventually tackled Petitioner in an effort to subdue him. As he was tackled, Petitioner threw a baggie containing 64.3 grams of cocaine base. Count 2 charged Petitioner with possession of cocaine base in violation of 21 U.S.C. § 841 (a)(1) and 841(b)(1)(A). Pursuant to a plea agreement, Petitioner pleaded guilty to Count 2 of the indictment on March 9, 1998. In the plea agreement, Petitioner reserved the right to appeal the Court's denial of his motion to suppress and to contest any finding that his prior criminal record subjected him to a mandatory life sentence. See 21 U.S.C. § 841(b)(1)(A). After admitting that he had two previous convictions for felony drug offenses, Petitioner was sentenced to life in prison.
On direct appeal, Petitioner argued that this Court erred in denying his motion to suppress and that the Government failed to provide adequate notice of the previous convictions upon which it was relying to enhance Petitioner's sentence. Petitioner's conviction and sentence were affirmed by the Seventh Circuit in an opinion issued May 1, 2000. United States v. Lawuary, 211 F.3d 372 (7th Cir. 2000).
Petitioner's Petition for Writ of Certiorari with the Supreme Court was denied on October 2, 2000. On September 30, 2001, Petitioner filed this Petition.

ANALYSIS

Under 28 U.S.C. § 2255:

A prisoner in custody under sentence . . . claiming the right to be released upon the ground 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, may move the court, which imposed the sentence, to vacate, set aside or correct the sentence.
28 U.S.C. § 2255. However, a petitioner may not raise constitutional errors in a § 2255 motion unless he has raised these errors on direct appeal. "Constitutional errors not raised on direct appeal may not be raised in a § 2255 motion unless the defendant can demonstrate either: (1) both good cause for his failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims; or (2) that the district court's refusal to consider the claims would lead to a fundamental miscarriage of justice." McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). Petitioner asserts several grounds for his § 2255 Motion.
I. Petitioner Claims the Court refused to Allow him to Maintain his Not Guilty Plea
First, Petitioner alleges that the Court acted in violation of the Fifth Amendment when it refused to allow Petitioner to maintain his not guilty plea. In essence, Petitioner is asserting that his guilty plea was involuntary. Petitioner failed to raise this issue on direct appeal, so his ability to raise it here depends upon whether he can prove good cause and actual prejudice or actual innocence. Murray v. Carrier, 477 U.S. 478, 489, 496 (1986). Bousley v. United States, 523 U.S. 614, 621 (1998) (holding that without a showing of cause and prejudice, "the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review"). Petitioner has made no attempt to establish cause and prejudice in relation to this claim.
At the change of plea hearing, Petitioner interrupted the hearing to inform the Court that he wanted to plead not guilty and proceed to trial. The following is taken from the change of plea hearing transcript:
Mr. Miller (Petitioner's counsel): Judge, he's advised me that he wishes to go to court.

The Court: I beg your pardon?

Mr. Miller: He had advised me now that he wishes to go to court. To go to trial.

The Court: That he wishes to go to trial?

Mr. Miller: That's right.

The Court: So that you do not wish to proceed to a plea of guilty at this time; is that right —

Mr. Lawuary: That's right.

The Court: — Mr. Lawuary?

Mr. Lawuary: That's right.

The Court: Mr. Lawuary, you realize, do you not, that you have signed a plea agreement in which you are admitting that you committed this offense? Do you realize that?

Mr. Lawuary: Yes, sir.

The Court: And now you want to stop the proceedings and go back and go to trial by jury is that your point?

Mr. Miller: Yes, sir, seems like it, sir.

The Court: What do you think that you will gain by that? You see, Mr. Lawuary, the reason why we have this mandatory life is not because of this offense, but because of your prior offenses.

Mr. Lawuary: I have only been convicted of one prior offense.*fn1

The Court: Well, we have one that is in 1993 and another conviction in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.