The opinion of the court was delivered by: Michael M. Mihm United States District Judge
This matter is now before the Court on Petitioner, Ronald Lee's ("Lee"), Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the § 2255 Motion [#4] is DENIED.
On November 3, 2008, Lee entered a guilty plea pursuant to a written plea agreement to charges of conspiracy to distribute and possess with intent to distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846, and distribution of more than 5 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) in the United States District Court for the Central District of Illinois. On March 6, 2009, he was sentenced to concurrent terms of 312 months' imprisonment, followed by a term of supervised release. Lee did not pursue a direct appeal.
Although he waived his right to appeal and pursue collateral relief pursuant to § 2255 in ¶¶ 13 and 14 of the written plea agreement, Lee has now filed the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. In his Motion, Lee attempts to collaterally attack his conviction based on allegations that he received ineffective assistance of counsel, that his convictions violate Double Jeopardy, and that the advisory guideline calculations were improper. This Order follows.
1. Motion to Vacate, Set Aside, or Correct Sentence
A petitioner may avail himself of § 2255 relief only if he can show that there are "flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or result in a complete miscarriage of justice." Boyer v. United States, 55 F.3d 296, 298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268 (1995). Section 2255 is limited to correcting errors that "vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude." Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993). A § 2255 motion is not, however, a substitute for a direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir.), cert. denied, 116 S.Ct. 205 (1995).
Here, Lee would appear to be barred from bringing this § 2255 motion by virtue of the fact that his plea agreement contains a waiver of his right to bring a collateral attack on his sentence. While Lee does assert that he should be resentenced, he makes no attempt to avoid the impact of this waiver by asking the Court to vacate his guilty plea and does not present any evidence indicating that but for his counsel's ineffective assistance, he would not have entered into the plea agreement. Perhaps this is because he believes that the plea bargain's advantages outweigh its disadvantages. In any event, so long as the plea agreement stands, the waiver of the right to appeal or pursue collateral relief must generally be enforced. Id., citing United States v. Wagner, 103 F.3d 551 (7th Cir. 1996); Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1999); United States v. Nelson, 124 F.3d 206, 1997 WL 374712, at *1 (7th Cir. July 1, 1997).
However, this circuit has recognized that the right to pursue a collateral attack pursuant to § 2255 survives "with respect to those discrete claims which relate directly to the negotiation of the waiver." Jones, 167 F.3d at 1144-45. Accordingly, while Lee does not contend that he received ineffective assistance of counsel in connection with the negotiation of the waiver itself, the Court will address his claim to the extent necessary to determine whether the negotiation of the various waiver provisions is implicated.
The seminal case on ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court stated that in order for a prisoner to demonstrate that counsel's performance fell below the constitutional standard, the petitioner would have to show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. A prisoner must also prove that he has been prejudiced by his counsel's representation by showing "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The courts, however, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 690.
To satisfy Strickland's prejudice prong in this case, Petitioner must demonstrate through objective evidence a reasonable probability that, but for counsel's purportedly erroneous advice, he would not have entered the guilty plea and would have insisted upon going to trial. United States v. Woolley, 123 F.3d 627, 635 (7th Cir. 1997). "It is far from obvious how a petitioner is expected to make such a showing, but it is clear that 'merely making such an allegation is insufficient.'" United States v. Ryan, 986 F.Supp. 509, 513 (N.D.Ill. 1997), citing Key, 806 F.2d at 139; see also, Bethel v. United States, 458 F.3d 711, 718 (7th Cir. 2006); McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996) (requiring that the petitioner establish through objective evidence that he would not have accepted the plea).
Here, Lee argues that but for the purportedly misleading advice and coercion by counsel, he would have rejected the plea offer and insisted on going to trial. A review of the transcript of the plea hearing reveals that, after a detailed discussion of the maximum sentence he could face depending on the nature of any past criminal conduct, Lee received a lengthy explanation of the waiver provision and its consequences during the plea colloquy. As set forth below, this explanation was more than sufficient to remedy any misinformation (or lack of information) that may have been provided by his counsel with respect to the waiver provisions, and hence, he has failed to demonstrate actual prejudice under Strickland. This same dialogue also demonstrates the knowing and voluntary nature of Lee's waiver and guilty plea, as well as his competency.
When the Court accepted Lee' guilty plea, it held a lengthy change of plea hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure. Rule 11 "provides protection for those who voluntarily choose to waive their constitutional right to a trial by pleading guilty while ensuring an adequate record to insulate the plea from appellate and collateral attacks." Key v. United States, 806 F.2d 133, 136 (7th Cir. 1986). Rule 11 also provides for a colloquy that "exposes the defendant's state of mind in the record through personal interrogation." Id., citing United States v. Fountain, 777 F.2d 351, 356 (7th Cir. 1985). This aspect of the Rule 11 hearing is especially important with respect to subsequent collateral proceedings, because the representations made by the defendant during a plea colloquy, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceeding. Id., citing Thompson v. Wainwright, 787 F.2d 1447 (11th Cir. 1986); Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 1629 (1977). Furthermore, "[s]olemn declarations in open court carry a strong presumption of verity." Blackledge, 97 S.Ct. at 1629.
Initially, the Court notes that Lee's plea agreement contains a detailed explanation of the charges against him, the elements that must be proven at trial on each charge, and the possible penalties that he would face if convicted. Plea Agreement at ¶¶ 4-9. The agreement also sets forth an analysis of the application of the Sentencing Guidelines based on the information currently available, as well as the admonition that the sentencing calculations or recommendations of any party would not be binding on the Court at sentencing. Id., at ¶¶ 15-20. Furthermore, in signing the Plea Agreement, Lee made the following certification:
I have read this entire plea agreement carefully and have discussed it fully with my attorney. I fully understand this agreement, and I agree to it voluntarily and of my own free will. I am pleading guilty because I am in fact guilty, and I agree that the facts stated in this agreement about my criminal conduct are true. No threats, promises, or commitments have been made to me or to anyone else, and no agreements have been reached, expressed or implied, to influence me to plead guilty other than those stated in this written plea agreement. I am satisfied with the legal services provided by my attorney. I understand that by signing below I am stating I agree with everything stated in this paragraph, and I am accepting and entering into this plea agreement.
Additionally, after a careful review of the transcript of Petitioner's Rule 11 hearing, the Court finds that he has failed to overcome the strong presumption of verity which attached to the statements of voluntariness and understanding that he made during that hearing. The pertinent portion of the record reveals the following colloquy between Lee and the Court after he was placed under oath:
Q: Now that you have been sworn, you understand that your answers to my questions are subject to the penalties of perjury or giving a false statement if you don't answer truthfully?
Q: Have you been treated recently for any mental illness or addiction to narcotic drugs?
Q: Are . . . you currently under the influence of any drug, medication, or alcoholic beverage?
Q: Have . . . you received a copy of the indictment, that is the formal charges made against you?
Q: Have . . . you fully discussed those charges contained in your case and the case in general, including any possible defenses that you might have, with your attorney?
Q: Mr. Lee, are you fully satisfied with the counsel, representation, and advice given to you in this case by Mr. Taylor as your attorney?
Q: As I understand it . . . your willingness to plead guilty here today is due, at least in part, to the discussions that you and your attorneys have had with the attorney for the Government leading up to the written plea agreements. Is that correct?
Q: Did . . . you have a reasonable opportunity to read and discuss the plea agreement with your attorney before you signed it?
Q: Does the plea agreement . . . represent in its entirety every understanding that you have with the Government?
Q: Do . . . you understand the terms of the plea agreement?
Q: Mr. Lee, do you have a prior felony drug conviction?
Q: All right. Then we're looking at -- at the bottom of page 4, concerning Count 1, it indicates there would be a mandatory 10 years up to life in prison, a fine of up to $4 million, supervised release term of 5 years to life and a special assessment of $100. Did you hear my explanation to him about supervised release?
Q: Do you understand that?
Q: Then as to Count 5, with no prior felony drug conviction you're looking at a custody term of 5 years up to 40 years, a fine of up to $2 million, a supervised release term of 4 years to life and a $100 mandatory special assessment. If the sentences were imposed consecutively, you would be looking at 15 years to life, a fine of up to $6 million, supervised ...