United States District Court, S.D. Illinois
October 24, 2005.
CLENNARD EDWARD McCORKLE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: MICHAEL REAGAN, District Judge
MEMORANDUM and ORDER
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 Cir. 1999); United States v.
Wenger, 58 F.3d 280, 282 (7th Cir. 1995). McCorkle expressly
acknowledged (in the sentencing agreement he signed and filed)
that his waiver was both knowing and voluntary (Doc. 14, Exh.
1, § 11).
Furthermore, the record before the Court plainly refutes
McCorkle's assertion that he was "tricked and coerced" into
signing the agreement containing the waiver. McCorkle attested
that "no promises, inducements, or representations" were made to
induce him to execute the agreement (Doc. 14, Exh. 1, ¶ 6).
Plus, at the August 6, 2004 sentencing hearing, the undersigned
Judge thoroughly addressed, with McCorkle and his counsel, the
various rights being waived, and McCorkle's answers reveal the
knowing and voluntary nature of his waiver. Pointedly queried as
to whether he understood the rights he was giving up, including
the right to collaterally attack his sentence, McCorkle indicated
that he thoroughly understood.
THE COURT: First of all, as I understand it, in broad
terms, you're going to plead guilty to Count 2 of the
Superseding Indictment, basically agree that you're
not going to appeal it. . . .
THE DEFENDANT: Yes, sir.
THE COURT: You're going to live with the jury's
THE DEFENDANT: Yes, sir.
THE COURT: Give up your right of directly appealing
or later attacking it collaterally. . . .
THE DEFENDANT: Yes, sir.
THE COURT: Is that your understanding of the broad
terms . . .?
THE DEFENDANT: Yes, sir. Yes, sir.
Doc. 16, Transcript of August 6, 2004 sentencing hearing, pp.
The undersigned Judge then carefully delineated each of the
specific details of the agreement, after which he again inquired
whether McCorkle understood and wanted to proceed under those
terms. McCorkle did.
THE COURT: . . . you're giving up your right to
appeal the conviction that has been entered in this
case regarding Count 2, which is what we call wire
fraud. In other words, when the jury found you
guilty, you're giving up your right to appeal that
guilty finding. You understand that?
THE DEFENDANT: I understand that, your Honor.
THE COURT: Also giving up your right to appeal any
decisions I have made regarding . . . motions in
limine, motions . . . to dismiss, you're giving up
your right to challenge any of that, to challenge the
legality of the Grand Jury, the information filed
against you, any improper search or seizure, or
lineup, or statement. Basically you're giving up your
right to challenge all of that by agreeing to this
THE DEFENDANT: Yes, your honor.
THE COURT: And you can't appeal. You're giving up
your right to appeal, you understand that?
THE DEFENDANT: That's right. That's right. . . .
THE COURT: You're also giving up your right to seek a
pardon. . . . You understand that?
THE DEFENDANT: Yes.
THE COURT: There's a second way that you can appeal. The first way . . . [is] called a direct appeal.
There is another way to appeal that we call a
Section 2255, and you have to file that within a year
of your sentencing. And you're agreeing not to file
one of those appeals either. You understand that?
THE DEFENDANT: Yes.
Doc. 16, Transcript at pp. 13-14 (emphasis added).
Indeed, in body of the agreement, McCorkle repeatedly
acknowledges that his waiver is both knowing and voluntary
(Doc. 14-2, ¶ 11). Stated simply, McCorkle's waiver is valid,
effective, and enforceable.
Nor does the record contain any evidence suggesting (much less
demonstrating) that McCorkle received ineffective assistance of
counsel in negotiating the sentencing agreement which contained
the waiver. See Jones v. United States, 167 F.3d 1142, 1145
(7th Cir. 1999). No support whatsoever exists for McCorkle's
argument that his lawyer "conspired" with Government counsel to
trick him into signing the sentencing agreement. As stated above,
the sentencing agreement was voluntary, knowing, and consensual
not the product of any trickery, conspiracy, or coercion. C. CONCLUSION
McCorkle's knowing and voluntary waiver of the right to
collaterally attack his sentence bars this § 2255 petition.
Moreover, he has identified no error that vitiates this Court's
jurisdiction or is otherwise of constitutional magnitude. No
hearing is warranted, and McCorkle is not entitled to relief
under 28 U.S.C. § 2255.
Accordingly, the Court DENIES McCorkle's § 2255 petition
IT IS SO ORDERED.
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