The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Petitioner, Kristopher Davis, filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) on March 22, 2010. The government filed a Motion to Dismiss Petitioner's Motion (#4) on April 23, 2010. This court has carefully considered both the arguments and documentation submitted by both parties. Following this careful and thorough review, the Government's Motion to Dismiss (#4) is GRANTED and Petitioner's Petition (#1) is DISMISSED with prejudice.
In January, 2008, Petitioner was indicted by the Federal Grand Jury for the Central District of Illinois on the charge of conspiracy to distribute 50 or more grams of cocaine base (crack) in violation of 21 U.S.C. § § 846 and 841(b)(1)(a). Petitioner plead guilty to the charges on April 21, 2008 at which time this court accepted the written plea agreement.
The plea agreement signed by Petitioner and entered by this court included the following waiver:
The defendant hereby knowingly and voluntarily waives his right to challenge any and all issues relating to his plea agreement, conviction and sentence, including any fine or restitution, in any collateral attack, including, but not limited to, a motion brought under Title 28, United States Code, Section 2255. The defendant acknowledges and agrees that the effect of this waiver is to completely waive any and all rights and ability to appeal or collaterally attack any issues relating to his conviction and to his sentence so long as the sentence is within the maximum provided in the statues of conviction.
Following the plea agreement and pursuant to an 18 U.S.C. § 3553(e) motion by the government, this court sentenced Petitioner to a 235-month term of incarceration. Petitioner's sentence was entered on March 25, 2009.
Petitioner filed a habeas petition (#1) pursuant to 28 U.S.C. § 2255 on March 22, 2010. The motion claims that the sentence Petitioner received is unconstitutional based upon violations of Petitioner's rights to due process and equal protection, as well as his right to a reasonable sentence. Petitioner claims that the penalty scheme of applying a 100 to 1 crack to powder ratio is unconstitutional and therefore his sentence should be vacated since this scheme was used in determining Petitioner's sentence.
The Seventh Circuit has repeatedly held that "a voluntary and knowing waiver of an appeal is valid and must be enforced." United States v. Rhodes, 330 F.3d 949, 952 (7th Cir. 2003; See, e.g., United States v. Sines, 303 F.3d 793, 798 (7th Cir. 2002); United States v. Hare, 269 F.3d 859, 860 (7th Cir. 2001); Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1999). However, even with a waiver, "A defendant does not lose the right to pursue a claim that the waiver was involuntarily made, was based on a constitutionally impermissible factor (such as race), or was made without the effective assistance of counsel." United States v. Rhodes, 330 F.3d at 952.
Even though it is possible to pursue a claim following a voluntary and knowing waiver, the ability to mount a § 2255 motion is severely limited. The Seventh Circuit has stated that "waivers are enforceable as a general rule; the right to mount a collateral attack pursuant to § 2255 survives only with respect to those discrete claims which relate directly to the negotiation of the waiver." Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000) (emphasis in original). Further, the Seventh Circuit has made clear that there is no such thing as a "constitutional-argument exception" to a valid waiver found in a plea agreement. United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir. 2000)
Here, Petitioner attempts to mount a constitutional challenge to his sentence, not a claim that the waiver was involuntarily made, was based on a constitutionally impermissible factor, or was made without the effective assistance of counsel. As aforementioned, Petitioner alleges that he was sentenced in violation of the United States Constitution. He claims that the sentence he received violated his rights to due process and equal protection as well as his right to receive a fair sentence.
Unfortunately for Petitioner, the waiver he signed forecloses his ability to mount a § 2255 motion pursuant to a constitutional challenge with regards to his sentence. The plea agreement, signed by Petitioner, included the following language: "The defendant hereby knowingly and voluntarily waives his right to challenge any and all issues relating to his plea agreement, conviction and sentence." Constitutional challenges are ...