Name of Assigned Judge Harry Sitting Judge if Other or Magistrate Judge D. Leinenweber than Assigned Judge
For the reasons stated below, Craig D. McKinley's petition under 28 U.S.C. § 2255 is denied.
O[ For further details see text below.] Docketing to mail notices.
On March 11, 2008, Petitioner Craig D. McKinley entered into a plea agreement under which he pled guilty to one count of bankruptcy fraud. At his March 4, 2009, sentencing, McKinley contested the $27,000 in restitution that Norman and Merlin Rouse alleged he owed them. This debt emerged from a construction contract, under which McKinley's C-Mack Construction & Remodeling business was to renovate the second and third floors of the Rouses' property. On January 11, 2002, the Rouses paid McKinley $7,000 toward the $27,000 down payment for the $80,500 project. On February 2, 2002, the Rouses paid McKinley the $20,000 balance on the down payment.
On March 15, 2002, McKinley filed for Chapter 7 bankruptcy, but did not disclose in his petition the $27,000 in cash the Rouses gave to him, the existence of the C-Mack business, or the Rouse construction contract. On April 22, 2002, the Rouses filed a complaint against McKinley in Illinois state court for the return of their money, alleging that McKinley did not perform as required under the construction contract. This claim was stayed due to McKinley's pending bankruptcy proceeding, and on June 28, 2002, the bankruptcy court, unaware of the Rouses' claim or the construction contract because of McKinley's misrepresentations, discharged all of McKinley's debts. This foreclosed the Rouses' state contract claim.
McKinley pled guilty to the charge that he filed a false and fraudulent bankruptcy petition, part of which included the omission of the Rouses' payment. In his plea agreement, McKinley waived all appeal rights. The waiver, however, did not apply to claims of involuntariness or ineffective assistance of counsel that directly related to the plea. McKinley subsequently filed a timely motion to vacate his sentence under 28 U.S.C. § 2255, alleging that ineffective assistance of counsel led to violations of his Sixth, Seventh, and Eighth Amendment rights with the plea agreement and sentencing.
A federal prisoner may seek to vacate, set aside, or correct his sentence only if the prisoner establishes that: (a) the sentence was imposed in violation of the Constitution or laws of the United States; (b) the court was without jurisdiction to impose the sentence; (c) the sentence was in excess of the maximum authorized by law; or (d) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255.
McKinley alleges that his attorney gave him misleading information regarding his plea, and that she placed him under duress to accept the plea agreement. To establish an ineffective assistance of counsel action, a petitioner must show that (1) performance of counsel fell below an objective standard of reasonableness, and (2) he was prejudiced in the sense that, but for counsel's alleged errors, there is a reasonable probability that the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687--99, 694 (1984).
The Court addresses each of the claims McKinley makes against his attorney.
(1) Erroneously guaranteeing a jury trial concerning restitution
McKinley alleges that his attorney informed him that, pursuant to the plea agreement, he would receive a trial for the restitution owed to the Rouses. In the plea agreement, however, McKinley expressly waived his trial rights. Plea Agreement ¶ 19(a), Mar. 11, 2008, 06-cr-622 ECF No. 37. At sentencing, McKinley stated that he read the plea agreement and discussed it with his attorney. Sentencing Tr. 3:4--7, Mar. 4, 2009. The only mistakes in the agreement that McKinley alleged at sentencing were minor and insignificant spelling errors. Id. at 3:10--16. Because McKinley stated in open court that he read the plea ...