The opinion of the court was delivered by: MICHAEL REAGAN, District Judge
A. INTRODUCTION AND PROCEDURAL BACKGROUND
Following a six-day trial in May 2004, a jury convicted
Clennard Edward McCorkle of wire fraud (a violation of
18 U.S.C. § 1343), which was Count 2 of the superseding indictment. The
jury could not reach a unanimous verdict on Count 1 of the
superseding indictment, which charged McCorkle with deprivation
of civil rights (a violation of 18 U.S.C. § 342), so the Court
declared a mistrial on that charge. Count 1 then was set for
Before retrial commenced, McCorkle and the United States of
America ("the Government") reached an agreement. As part of the
resolution regarding McCorkle's sentence on Count 2, the
Government agreed to dismiss Count 1 and not retry him on that
On August 6, 2004, pursuant to the parties' agreement, the
Court dismissed Count 1 and sentenced McCorkle on Count 2. See
Docs. 81, 82, 83 in Case No. 03-cr-30058. McCorkle's sentence
included a term of imprisonment of one year and one day, three
years of supervised release, a $100 special assessment, and a
$3,000 fine. He agreed to each component of this sentence in the written sentencing agreement (Exhibit 1 to Doc. 14 in Case No.
04-cv-0921 at ¶¶ 1, 8, 9, 10).*fn1 Judgment was entered
accordingly on August 9, 2004.
McCorkle timely moved this Court to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. On preliminary
review, the Court found some of McCorkle's § 2255 claims utterly
baseless and directed the Government to respond to the
remaining claims for § 2255 relief. See Doc. 7.
Before the Government filed its response, McCorkle moved to
amend his § 2255 petition. That filing was stricken, however,
because (inter alia) it lacked a certificate of service. The
Clerk's Office notified McCorkle of the proper steps to file an
amended § 2255 petition (see Doc. 9). He elected not to do so.
Thus, the Government responded to McCorkle's original § 2255
petition (Doc. 1) on October 6, 2005 (Doc. 14). The issues being
fully briefed, the Court now rules thereon, beginning with an
overview of the legal standard governing § 2255 petitions.
28 U.S.C. § 2255 authorizes a federal prisoner to ask the
court which sentenced him to vacate, set aside, or correct his
sentence, if "the sentence was imposed in violation of the
Constitution or laws of the United States, or . . . the court was
without jurisdiction to impose such sentence, or . . . the
sentence was in excess of the maximum authorized by law. . . ."
Relief under § 2255 is limited. Unlike a direct appeal, in
which a defendant may complain of nearly any error, § 2255
proceedings may be used only to correct errors that vitiate the
sentencing court's jurisdiction or are otherwise "of
constitutional magnitude." Broadway v. United States, 104 F.3d 901, 903 (7th Cir. 1997). Accord
Corcoran v. Sullivan, 112 F.3d 836, 837 (7th Cir. 1997) (§
2255 relief is available only to correct "fundamental errors in
the criminal process"). The United States Court of Appeals for
the Seventh Circuit has explained that § 2255 relief "is
appropriate only for an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect which
inherently results in a complete miscarriage of justice." Harris
v. United States, 366 F.3d 593, 594 (7th Cir. 2004).
Accord Borre v. United States, 940 F.2d 215, 217 (7th Cir.
Before the Court determines whether those circumstances are
present in a given case, it must ascertain that the claims
asserted are made in a procedurally appropriate fashion.
Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir.
1989). McCorkle's § 2255 motion fails to clear this bar. As is
described further below, he effectively waived the right to seek
any relief under § 2255.
On August 6, 2004, McCorkle filed a document entitled
"Defendant's Agreement to Accept an Agreed Sentence on Count 2 of
the Superseding Indictment" (Exh. 1 to Doc. 14). In exchange for
the Government (a) not retrying McCorkle on Count 1, (b)
dismissing Count 1, (c) not prosecuting McCorkle "for other
crimes the Defendant has committed that are now known by the
Government . . ., including . . . Federal tax evasion," and (d)
not seeking an upward departure at sentencing, McCorkle waived
all rights "to contest any aspect of his conviction and sentence"
under Title 18, Title 28, or any other provision of federal law
(id., ¶ 11).*fn2 Clearly, this would encompass a motion to vacate or set aside sentence under
28 U.S.C. § 2255.*fn3
The Seventh Circuit consistently has upheld similar waivers,
viewing them "through the lens of contract law." For instance, in
United States v. Bownes, 405 F.3d 634, 636-37 (7th Cir.
2005), cert. denied, ___ U.S. ___, 2005 WL 2216993 (Oct. 3,
2005), the Court enforced an appeal waiver and dismissed an
A plea agreement is a type of contract. . . . In a
contract (and equally in a plea agreement) one binds
oneself to do something that someone else wants, in
exchange for some benefit to oneself. By binding
oneself one assumes the risk of future changes in
circumstances in light of which one's bargain may
prove to have been a bad one. That is the risk
inherent in all contracts; they limit the parties'
ability to take advantage of what may happen over the
period in which the contract is in effect.
The government didn't want Bownes to appeal and was
willing to offer concessions that he and his lawyer
considered adequate to induce him to forgo his right
to appeal. Had Bownes insisted on an escape hatch
that would have enabled him to appeal if the law
changed in his favor after he was sentenced, the
government would have been charier in its
concessions. . . . [T]here is abundant case law that
appeal waivers worded as broadly as this one are
effective even if the law changes in favor of the
defendant after sentencing. . . .
Likewise in U.S. v. Cieslowski, 410 F.3d 353
, 364 (7th
Cir. 2005), the Seventh Circuit upheld a waiver of both direct
(appeal) rights and collateral attack (§ 2255) rights:
Cieslowski would also like to raise a Sixth Amendment
challenge to various aspects of his sentence, but
once again, since we have concluded that he cannot
escape the plea agreement, he cannot do so. The plea
agreement contained a waiver of Cieslowski's right to
appeal "any sentence within the maximum provided in
the statute of conviction." We strictly enforce such
waivers. See Barnes, 83 F.3d at 941; United States v. Feichtinger,
105 F.3d 1188, 1190 (7th Cir. 1997). Cieslowski voluntarily
entered into the plea agreement, and he is therefore
bound by all its terms, including the waiver of his
right to appeal the sentence.
Such waivers are fully enforceable, as long as they are made
knowingly and voluntarily. United States v. Lockwood,
416 F.3d 604
, 608 (7th Cir. 2005), citing United States v.
Williams, 184 F.3d 666
, 668 (7th ...