The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Kenneth Dewayne Bell's ("Bell") motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1), a supporting brief and exhibits (Docs. 2 & 3) and a supplement to that motion (Doc. 6). Pursuant to the Court's instruction, the government responded to several issues raised by Bell's filings (Doc. 10), and Bell has replied to that response (Doc. 13).
In October 1998, Bell was indicted on one count of conspiring to distribute crack cocaine in violation of 21 U.S.C.§§ 841(a)(1) and 846. Represented by Robert Crego ("Crego"), Bell pled guilty pursuant to a written plea agreement in January 1999.
Approximately two weeks after his guilty plea, Bell sought to withdraw his plea on the grounds that he lied about the voluntary nature of his plea because his counsel and the government misinformed him of his options. After holding a hearing and carefully reviewing the plea hearing, the Court determined that when he pled guilty Bell demonstrated his understanding of the charge and its factual basis as well as the consequences of a guilty plea. It further found that Bell had not presented sufficient reasons for the Court to discredit his testimony at the plea hearing, including his statements that no threats or promises had been made to him other than the plea agreement and that he was pleading guilty as his own free and voluntary act.
On February 4, 2000, the Court sentenced Bell to serve 274 months in prison.*fn1 Final judgment was entered on the docket sheet on February 9, 2000. Bell did not appeal his sentence or conviction and, in accordance with the plea agreement, received a substantial reduction in sentence (106 months) because of his cooperation with the government.
Nearly four years later, in January 2004, Bell filed the pending § 2255 motion. In it he alleges essentially that his guilty plea was not knowing and voluntary because Crego was constitutionally ineffective in his performance leading up to the plea. Specifically, he alleges that Crego failed to investigate and discover evidence that two government agents involved in his case had been accused of framing defendants by lying and fabricating evidence and of misusing public funds. Bell asserts that had he known of such impeachment evidence before his guilty plea, he would have chosen instead to go to trial. He also faults Crego with "threatening" him that he would get a life sentence if he went to trial and lost, a prospect which Crego advised him was likely in light of the government's evidence. He also alleges that Crego was not paid enough to motivate him to represent Bell vigorously.
In November 2004, Bell filed a supplement to his § 2255 motion in which he challenges his sentence based on Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 375 F.3d 508 (7th Cir. 2004), aff'd, 543 U.S. 220 (2005).
The Court directed the government to respond to the questions of whether Bell waived his arguments in the pending motions in his plea agreement and whether Bell's petition satisfied the one-year limitations period for § 2255 petitions set forth in § 2255, ¶ 6. It declined to order a substantive response to Bell's motion.
The government responded that Bell's plea agreement waived his Blakely/Booker argument and that the one-year limitations period bars his motion.
Bell filed his § 2255 motion and its supplement after the one-year statute of limitations set forth in paragraph 6 of § 2255 expired. Prisoners used to be able to file motions under § 2255 at any time during their sentences. However, on April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, tit. I, § 106 (codified at 28 U.S.C. §§ 2244(a) & (b), 2255), which added a one-year limitations period for a motion attacking a sentence. The one-year limitations period runs from the latest of four events:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented ...