The opinion of the court was delivered by: GEORGE LINDBERG, Senior District Judge
MEMORANDUM OPINION AND ORDER
Defendant Flora A. Braziel pied guilty to mail fraud, and was sentenced
to 96 months in prison. Braziel's appeal of her sentence was dismissed on
January 14, 2004, Braziel has filed this motion to vacate, set aside, and
correct sentence pursuant to 2S U.S.C. § 2255. For the reasons stated
below, the motion is denied.
As a preliminary matter, the court considers Braziel's request, made
in an affidavit attached to Braziel's Section 2255 motion, that another
judge review the motion due to mis court's bias. The court construes
Brazicl's request as a motion for recusal under 28 U.S.C. § 144.
Section 144 provides.:
Whenever a party to any proceeding in a district
court makes and files a timely and sufficient
affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either
against him or in favor of any adverse party, such
judge shall proceed no further therein, but another
judge shall be assigned to hear. such proceeding.
When a judge receives a motion under Section 144, the judge must evaluate
the legal sufficiency of the affidavit, but not the truth or falsity of
the allegations contained in it. See United States_ v. Barnes.
909 F.2d 1059
, 1071 (7th Cir. 1990). The affidavit must "state the facts
and the reasons for the belief that bias or prejudice exists. . . ."
28 U.S.C. § 144, Only factual statements that are
"sufficiently definite and particular to convince a reasonable person
that bias exists" need he credited. United States v. Sykes, 7 F.3d 1331
1339 (7th Cir. 1993).
Braziel asserts two grounds for disqualfication in her affidavit.
First, she asserts that this court is biased against her because in
January 2002, the court barred Braziel's counsel from filing untimely
pretrial motions. Second, Braziel asserts that this court denied her
motion to withdraw her guilty plea on October 30, 2002 without first
providing her an evidentiary hearing. These grounds for disqualification
are based on Braziel's disagreement with the court's rulings, and do not
identify any grounds for any sort of personal bias against her. Judicial
rulings alone almost never constitute a valid basis for disqualifying a
judge; such rulings "are proper grounds for appeal, not for recusal."
Liteky v. United States, 510 U.S. 540, 555 (1904). The court finds that
Braziers motion for recusal is insufficient under Section 144, and denies
The court now turns to Braziel's Section 2255 motion. On May 31, 2001,
plaintiff was charged with eight counts of mail fraud. The indictment
alleged that Braziel had fraudulently obtained unemployment insurance
benefits from the Illinois Department of Employment Security by posing as
fictitious claimants and malting false claims. On February 13, 2002,
Braziel pled guilty to one count of mail fraud. On May 30, 2002, before
Braziel had been sentenced, she was charged with committing additional
acts of mail fraud during the time since her guilty plea. On September 4,
2002, Braziel pled guilty to committing mail fraud on March 21, 2002. On
March 12, 2003, this court sentenced Braziel to a 96 month prison
Braziel raises three grounds in her Section 2255 petition. First,
Braziel claims that the attorney that represented her when she entered
her guilty plea provided ineffective assistance of counsel by failing to
investigate, failing to summon witnesses, failing to provide the
with Braziel's proffer, and failing to timely file prctrial motions.
Second, Braziel claims that the government conducted an unconstitutional
search and scizure when it arrested her in 1997*fn1 and took handwriting
and fingerprint exemplars, as well as by unconstitutionally denying her
the right to counsel while the exemplars were being taken. Finally,
Braziel claims that the government violated her Fourth, Fifth, and Sixth
Amendment rights by arresting her in 1997, 2001, and 2002, and by not
holding a hearing prior to the 2002 arrest Braziel acknowledges that she
did not raise the second and third grounds before this court, but
contends that she would have done so in a pretrial motion if this court
had not barred her from filing pretrial motions.
The government, first argues that Braziel waived her right to bring
this collateral attack in her plea, agreements, A knowing and voluntary
waiver of a collateral attack under Section 2255 is valid and
enforceable. Mason v. United States, 211 F.3d 1065
, 1069 (7th Cir.
2000). Both the February 13 find September 4, 2002 plea agreements
contained the following language:
Except as set forth below, defendant also waives her
right to challenge his [sic] sentence or the manner in
which it was determined in any collateral attack,
including but not limited to a motion brought under
Title 28, United States Code, Section 2255. The waiver
in this paragraph does not apply to a claim of
involuntariness, or ineffective assistance of
counsel, which relates directly to this waiver or to
Since the waiver provisions in the plea agreements only bar collateral
attacks on her sentence, they do not bar this collateral attack, which
challenges her conviction. See Bridgeman v. United States, 229 F.3d 589
591-92 (7th Cir. 2000) (the express language of the waiver determines
scope of waiver).
The government also argues that Braziel forfeited her right to present
these issues now, by failing to raise them before she was sentenced. On
September 18, 2002, shortly after Braziel entered her second guilty plea,
Brazil's attorney was granted leave to withdraw. Braziel's new counsel
filed a motion to withdraw Braziers second guilty plea on October 2,
2002. That motion asserted that the guilty plea had nol been blowing and
voluntary because Braziel did not understand that her sentences could run
consecutive to each other. Braziel further claimed in that motion that
she was innocent of the charges contained in the superceding indictment.
The motion did not raise the issues raised in her Section 2255 petition.
In Hugi v. United States, 164 F.3d 378 (7th Cir. 1999), the Seventh
Circuit considered whether a criminal defendant had forfeited his right
to raise the issue of ineffective assistance of counsel in a Section 2255
proceeding by failing to raise it before the trial court after the
allegedly ineffective counsel had been replaced. The attorney that bad
represented the defendant during the guilty plea was replaced by another
attorney nearly nine months before the defendant was sentenced, Id. at
380. In the subsequent Section 2255 collateral attack, the defendant
argued that his first attorney had provided ineffective assistance of
counsel by failing lo raise certain affirmative defenses, Id. The
district court held that the defendant had forfeited that claim by
failing to present it between the time he had obtained new counsel and
sentencing. Id. The Seventh Circuit affirmed, noting that "[a] guilty
plea is not a road show tryout before the `real' contest occurs in the $
2255 proceedings." Id. at 382.
As did the defendant in Hugi, here Braziel had a lengthy period of time
after obtaining new counsel and before sentencing in which she could have
moved to withdraw her guilty plea on the bases she raises in this
proceeding. Although Braziel had nearly six months between the
time she received new counsel and her March 12, 2003 sentencing,
she did not move lo withdraw her guilty plea on the basis that her first
attorney had provided ineffective assistance of counsel by failing to
investigate, failing to summon witnesses, failing to provide the
government with Braziel's proffer, and failing to timely file pretrial
motions. Nor did she move to vacate her guilty plea on the other bases
raised here. Since Braziel could have raised these issues prior Lo
sentencing and did not do so, she has waived them.
A Section 2255 petition may be dismissed summarily if "the record
conclusively demonstrates that the petitioner is not entitled to relief"
Barker v. United Stales, 7 F.3d 629, 633 n.3 (7th Cir. 1993). Under the
record made in this ease, no evidentiary hearing is necessary to
determine that defendant is not entitled to relief. Accordingly, the
court denies defendant's motion to vacate, set aside, and correct
ORDERED: Defendant's motion to vacate, set aside, and correct ...