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LAWUARY v. U.S.
April 24, 2002
CHARLIE LAWUARY, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Richard Mills, United States District Judge
This cause is before the Court on Petitioner's petition under
28 U.S.C. § 2255.
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
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
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
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?
The Court: And now you want to stop the proceedings
and go back and go to trial by jury is that
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
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