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United States v. Jimenez

June 24, 2005

UNITED STATES OF AMERICA
v.
JOCELYN JIMENEZ



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Jocelyn Jimenez pled guilty to a charge of willfully aiding in the preparation and presentation of false income tax returns to the Internal Revenue Service and a charge of corruptly endeavoring to obstruct the administration of the federal tax laws. The Court sentenced her to eighteen months in prison.

Jimenez has moved to vacate her conviction and sentence pursuant to 28 U.S.C. § 2255, contending that she did not receive effective assistance of counsel and that certain purportedly exculpatory information was not disclosed by the government. She says that as the result of counsel's ineffectiveness and the government's non-disclosure, her guilty plea was not knowing or voluntary. For the reasons stated below, the Court denies Jimenez's motion.

1. Waiver of Right to File § 2255 Motion

Jimenez pled guilty pursuant to a nineteen-page written plea agreement that included the following provision:

13. Defendant is also aware that Title 18, United States Code, Section 3742, affords a defendant the right to appeal the sentence imposed. Acknowledging this, the defendant knowingly waives the right to appeal any sentence within the maximum provided in the statutes of conviction or the manner in which that sentence is determined, in exchange for the concessions made by the United States in this Plea Agreement. Defendant also waives her right to challenge her 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 its negotiation.

Govt. Ex. 2, ¶ 13 (emphasis added). The government argues that this provision bars Jimenez's § 2255 motion.

The Court disagrees. A defendant may waive the right to file a § 2255 motion so long as she does so voluntarily. See, e.g., Bridgeman v. United States, 229 F.3d 589, 591 (7th Cir. 2000); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999). In this case, however, the wording of the waiver in the plea agreement is insufficient to bar Jimenez's challenge to her guilty plea. First of all, the plain language of the waiver is limited to challenges to the "sentence or the manner in which it was determined." Jimenez's motion attacks her conviction, not her sentence. The Court recognizes that the waiver is worded in the way that § 2255 itself is worded. But there is no basis to believe that Jimenez possibly could have understood the waiver to encompass challenges to her guilty plea itself (i.e., her conviction), as opposed to challenges to her sentence.

In addition, the Court's colloquy with Jimenez at the time of her guilty plea did not elicit an expression of understanding that the waiver would cover a challenge of the type that Jimenez makes here. The pertinent portion of the colloquy was as follows:

THE COURT: Under normal circumstances, you would have the right to challenge the sentence that I give you by appealing it to a higher court. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Now, in this plea agreement, you have given up your right to appeal, and you have also given up another related right. Basically what it says that, with a couple of exceptions, you won't have the right to appeal your sentence, and you also will not have the right to come back to me later on and ask me to reduce or vacate the sentence with a couple of exceptions. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: What it boils down to is that so long as I sentence you within the maximum possible penalties that I gave you, that I described to you earlier, you are going to be stuck with the sentence that I give you, and ...


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