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Varena Mccloud v. United States of America

January 11, 2011

VARENA MCCLOUD, MOVANT,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Varena McCloud ("petitioner" or "McCloud") has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence. For the reasons explained below, that petition is denied.

I.

On February 5, 2008, McCloud, along with 17 co-defendants, was charged with wire fraud, in violation of 18 U.S.C. § 1343, in connection with a $7.2 million mortgage fraud scheme. On January 9, 2009, McCloud entered a blind plea of guilty to eight counts of the indictment and filed a plea declaration with this court. On October 23, 2009, I sentenced McCloud to 57 months' imprisonment, followed by three years' supervised release, and ordered restitution in the amount of $1,318,275. McCloud filed a notice of appeal with the Seventh Circuit on October 30, 2009, but McCloud voluntarily dismissed her appeal on March 3, 2010. McCloud filed a motion pursuant to 28 U.S.C. § 2255 on October 22, 2010.

Under 28 U.S.C. § 2255, federal prisoners can challenge the imposition or length of their detention if their conviction or sentence has been founded on an error that is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir. 1992); 28 U.S.C. § 2255. If the court determines that any of these errors infected the judgment or sentence, the petitioner's conviction will be vacated or set aside, and the petitioner will be discharged, resentenced, or granted a new trial. 28 U.S.C. § 2255.

Because a motion under § 2255 is not a substitute for a direct appeal, United States v. Barger, 178 F.3d 844, 848 (7th Cir. 1999), a petitioner cannot raise three issues: "(1) issues that were raised on direct appeal absent a showing of changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural fault as well as actual prejudice from the failure to appeal." Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) (footnote omitted) (emphasis in original), overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).

A. Plea Not Knowing and Voluntary

The government argues that McCloud's first claim -- that her plea was not knowing and voluntary -- is not reviewable by this court. Specifically, it maintains that because McCloud failed to raise this issue on appeal, it has been procedurally defaulted and is not properly before this court. Belford, 975 F.2d at 313. Relying on Bousley v. United States, 523 U.S. 614, 621-22 (1998), McCloud maintains that she has not procedurally defaulted her claim because she could not have presented her claim on appeal based on the record. McCloud argues that "it is evidence not in the record which is determinative on what Movant's understanding of her plea was." Reply at 3.

McCloud cannot avoid procedural default here. In Bousley, a petitioner attempted to challenge the voluntariness of his plea despite the fact that he failed to raise the claim on appeal. 523 U.S. at 621. He attempted to argue that "his claim falls within an exception to the procedural default rule for claims that could not be presented without further factual development." Id. The Supreme Court recognized that, in Waley v. Johnson, 316 U.S. 101, 104 (1942), it held that there was an exception to procedural default "for a claim that a plea of guilty had been coerced by threats made by a Government agent, when the facts were 'dehors the record and their effect on the judgment was not open to consideration and review on appeal.'" 523 U.S. at 622 (quoting Waley, 316 U.S. at 104). In rejecting the applicability of Waley, the Bousley Court concluded that the petitioner's claim was distinguishable from the petitioner in Waley (it was not based on government coercion) and could have been presented on appeal based on the record from the plea hearing. 523 U.S. at 622.

As was the case in Bousley, Waley is inapposite. There is no suggestion of government coercion or other threats here. In addition, petitioner's attempt to analogize her case to Massaro v. United States, 538 U.S. 500, 504 (2003) (holding that a § 2255 movant may bring an ineffective assistance of counsel claim for the first time on collateral review because the trial record on appeal may not be adequately developed to analyze that type of claim), is totally unsupported. In the end, I reject McCloud's argument because the record is clear that McCloud understood that she was entering into a blind plea and that, ultimately, I had the final say in what her sentence would be. She specifically acknowledged that no one made any promises to induce her to plead guilty. Further, the plea colloquy and Plea Agreement make clear that McCloud understood the highest possible sentences she faced and the record also contains all her under-oath answers to my questions. Petitioner's conversations with her counsel may go to her ineffective assistance of counsel claim, but she has failed to show why they are relevant here. While she alleges that she did not understand until her sentencing that she was going to receive a much longer period of incarceration than her counsel had originally anticipated, she was certainly aware of, once she was sentenced, the facts underlying her claim that her plea was not voluntary.

Because McCloud failed to show "cause and prejudice," her claim is procedurally defaulted.

B. Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, a petitioner must demonstrate: (1) that her attorney's performance was deficient; and (2) that such representation prejudiced her case. Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong is satisfied by showing that counsel's performance fell below the "objective standard of reasonableness" guaranteed under the Sixth Amendment. Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting Strickland, 466 U.S. at 687). To satisfy the Strickland prejudice element, a petitioner must demonstrate that it is reasonably likely that, but for her counsel's errors, the decision reached would have been different. Strickland, 466 U.S. at 696.

The court begins with the "strong presumption" from Strickland that an attorney's assistance was effective within the meaning of the constitution. 466 U.S. at 689. Further, in assessing an attorney's performance, the court must look at the whole of his representation of the petitioner, not simply the isolated examples about which the petitioner is complaining. Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir. 1996). In appropriate cases, the court may skip ...


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