United States District Court, S.D. Illinois
May 6, 2005.
SERGIO J. CRUZ, Petitioner,
UNITED STATES ATTORNEY GENERAL, Respondent.
The opinion of the court was delivered by: WILLIAM STIEHL, Senior District Judge
MEMORANDUM AND ORDER
Petitioner, an inmate in the Federal Correctional Institution
in El Reno, Oklahoma, brings this habeas corpus action
challenging his sentence imposed in the United States District
Court for the Southern District of Illinois. His petition makes
clear that he is challenging the constitutionality of his federal
sentence. However, it is unclear under which statute the
Petitioner has brought this action. He filed the petition on a
form entitled "Petition under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody," but the word State is lined
through and the word Federal is handwritten underneath. He could
be seeking relief under the general habeas corpus statute,
28 U.S.C. § 2241, or he could be moving to Vacate, Set Aside or
Correct Sentence pursuant to 28 U.S.C. § 2255. Regardless of the
procedural vehicle he uses to bring his claims, any attack on his
federal sentence is barred by the Petitioner's plea agreement.
Pursuant to a plea agreement and stipulations of fact,
Petitioner pleaded guilty to one count of conspiracy to
distribute marijuana. On December 8, 2003, he was sentenced to
262 months imprisonment, five years supervised release, and a
fine in the amount of $300.00. No appeal was filed, but on April 29, 2005, Petitioner filed this action.
Petitioner entered into a plea agreement with the Government in
an attempt to benefit himself. In exchange for the benefits he
received, Petitioner waived his right to a direct appeal and to a
collateral attack. Specifically, the plea agreement provides in
The Defendant is aware that Title 18, United States
Code, Section 3742 affords a defendant the right to
appeal the sentence imposed. Acknowledging all this,
the Defendant knowingly and voluntarily waives the
right to appeal any sentence within the maximum
provided in the statute(s) of conviction (or the
manner in which the sentence was determined) on the
grounds set forth in Title 18, United States Code,
Section 3742 or on any ground whatever, including
ordered restitution, in exchange for the concessions
made by the United States in this plea agreement. The
Defendant also waives his right to challenge his
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 (emphasis added).
Plea agreement ¶ II-12 (Doc. 74, criminal case).
The Seventh Circuit has held that "a waiver of a right to
appeal contained within a guilty plea is enforceable," provided
the waiver is knowing and voluntary. United States v.
Feichtinger, 105 F.3d 1188, 1190 (7th Cir.), cert. denied,
117 S.Ct. 2467 (1997); United States v. Schmidt, 47 F.3d 188,
190 (7th Cir. 1995). See also United States v. Wenger,
58 F.3d 280, 281 (7th Cir.), cert. denied, 116 S.Ct. 349
(1995). A waiver will not be enforced, however, if the district
judge relied on impermissible facts in sentencing (for example,
the defendant's race or gender) or if the judge sentenced the
defendant in excess of the statutory maximum sentence for the
offense committed. Feichtinger, 105 F.3d at 1190.
Similarly, the Seventh Circuit has found that a waiver of
Section 2255 relief in a plea agreement is enforceable, and
should be treated no differently from the waiver of a direct
appeal. Jones v. United States, 167 F.3d 1142, 1145 (7th
Cir. 1999). Indeed, the Seventh Circuit has specifically stated
that both statutory and constitutional rights can be waived in a
plea agreement. Id. at 1144; United States v. Woolley, 123 F.3d 627, 631-32
(7th Cir. 1997); Feichtinger, 105 F.3d at 1190.
For the waiver to apply, however, Petitioner's sentence had to
be within the maximum provided for in the statute of conviction
and the applicable guideline range based upon petitioner's
relevant conduct. The maximum penalty for conspiracy to
distribute marijuana is life imprisonment. See
21 U.S.C. § 841(b)(1)(A). Based upon the conduct to which Petitioner admitted
and others attributed to him, his applicable range of
imprisonment was 262 to 327 months; Petitioner was sentenced to
262 months. There is no basis in the record for avoiding this
waiver, as the Court neither relied upon constitutionally
impermissible factors in sentencing Petitioner nor, sentenced him
above the statutory maximum.
Because the waiver provisions of a plea agreement are
enforceable, Petitioner has waived his right to collaterally
attack his sentence via either Section 2255 or Section 2241.
Accordingly, the instant petition is DISMISSED.
IT IS SO ORDERED.
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