United States District Court, N.D. Illinois
October 18, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Kevin J. Kennedy, a federal prisoner, filed a pro se motion
under 28 U.S.C. § 2255, challenging his sentence which followed
his guilty plea pursuant to a written plea agreement. The
government filed a motion to dismiss the § 2255 motion as well as
a motion to resentence. Kennedy, now represented by the Federal
Defender, has filed a response to the government's motion,
including a request for an evidentiary hearing.
Because Kennedy's written plea agreement contains an express
waiver of his right to file a § 2255 challenge to his sentence,
the threshold, and potentially dispositive, issue, is whether
Kennedy has adequately alleged that the waiver was either
involuntary and unknowing, or was the result of ineffective
assistance of counsel. See Mason v. United States,
211 F.3d 1065 (7th Cir. 2000). In that regard, the government concedes
in its reply that Kennedy has "alleged that his counsel was
ineffective in the negotiation of the waiver," thus, this court
need only determine if such an allegation is supported by the
A defendant who, as part of a written plea agreement, expressly
waives his right to file a § 2255 motion challenging his sentence
may only file such a motion if he can demonstrate that the § 2255
waiver was either unknowing and involuntary or the result of
ineffective assistance of counsel. Mason, 211 F.3d at 1069. As
to any ineffectiveness related to the waiver, the Mason court
emphasized that the right to file a § 2255 challenge "survives
only with respect to those discreet claims which relate directly
to the negotiation of the waiver." Mason, 211 F.3d at 1069,
citing Jones v. United States, 167 F.3d 1142, 1145 (7th
In this case, Kennedy's assertion of ineffectiveness, conceded
by the government to be directly related to the negotiation of
the waiver, fails to provide any basis to set aside the waiver.
In this regard, he contends that counsel was ineffective in
advising him that the maximum sentence was 10 years and that he
could later contest the drug quantity that he had agreed to in
the plea agreement.
These assertions falter in the face of what occurred in this
case. The record of the Rule 11 colloquy shows that this court
advised Kennedy at that time that he faced a potential sentencing
range of 235 to 292 months, which Kennedy stated he understood.
He further stated that he both read and reviewed with his
attorney the plea agreement. Kennedy also stated that he was
satisfied with his counsel's advice related to the plea
agreement. Further, he stated that he voluntarily agreed to a
particular amount of methamphetamine. Finally, Kennedy stated he
understood that he was giving up his right to bring a § 2255
motion and that in return the government was agreeing to forego
seeking a two-level enhancement. All of these facts reflect that
Kennedy received the effective assistance of counsel related to
the § 2255 waiver.
In an apparent effort to refute this conclusion, Kennedy
submitted, pro se, the affidavits of his wife and mother,
along with a motion to expand the record to include those two
affidavits. Although this court ordered the government to
"respond to [this motion] with its response to the § 2255
motion," it has not done so. Kennedy's counsel, in his response
to the government's motion to dismiss, expressly incorporates the
The court grants Kennedy's motion to expand the record and will
allow the two affidavits. Having considered both affidavits, the
court finds they do not raise a question of fact or justify an
evidentiary hearing as it relates to the issue of the validity of
the § 2255 waiver. While both affidavits are replete with
generalized complaints about Attorney Robertson's representation
of Kennedy, they are devoid of any specific instances of
ineffectiveness as it directly relates to the § 2255 waiver.
Kennedy has submitted no evidence to refute the court's
conclusion that his waiver was not the result of ineffective
assistance of counsel.
For the foregoing reasons, the court grants Kennedy's motion to
expand the record, denies Kennedy's request for an evidentiary
hearing, and grants the motion to dismiss the § 2255 motion. The
government is to either move to withdraw its motion to resentence
or advise the court if it wishes to proceed with that motion
within seven days.
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