The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
E-FILED Thursday, 26 May, 2011 02:57:02 PM Clerk, U.S. District Court, ILCD
On January 5, 2011, Petitioner, John Bender, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1). The government filed a Motion to Dismiss the Petitioner's Motion Pursuant to 28 U.S.C. § 2255 on January 11, 2006 (#4). The government argued that the Petitioner's Motion should be denied because the Petitioner waived his right to collaterally attack his sentence in his Plea Agreement and the Petitioner's Motion was filed after 28 U.S.C. § 2255's one-year time limitation. On February 28, 2011, Petitioner filed a Reply (#7). For the following reasons, the Court GRANTS the government's Motion to Dismiss (#4) and DISMISSES Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (#1).
On October 7, 2008, the Petitioner plead guilty in 08-CR-20051 to one count of unlawful possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1). Based on two prior violent felony offenses and a serious drug offense, the Petitioner was classified as an Armed Career Criminal under 18 U.S.C. 924(e) and faced a mandatory minimum sentence of fifteen years in prison with a maximum sentence of life imprisonment. In order to receive the mandatory minimum of fifteen years in prison, the Petitioner agreed to waive his right to collaterally attack his sentence under 28 U.S.C. § 2255. Paragraph 22 of the Plea Agreement stated:
The defendant also understands that he has a right to attack his sentence collaterally on the grounds it was imposed in violation of the Constitution or laws of the United States, he received ineffective assistance from his attorney, this Court was without proper justification or the sentence was otherwise subject to collateral attack. The defendant understands such an attack is usually brought through a motion pursuant to Title 28, United States Code, Section 2255. The defendant and his attorney have reviewed Section 2255, and the defendant understands the rights that statute gives him. The defendant's attorney has fully discussed and explained this waiver with the defendant. The defendant specifically acknowledges that the decision to waive the right to challenge any later claim of the ineffectiveness of the defendant's counsel was made by the defendant alone notwithstanding any advice the defendant may or may not have received from the defendant's attorney regarding this right. Regardless of any advice his attorney has given him one way or the other, in exchange for the concessions made by the United States in this Plea Agreement, including an agreement to be sentenced to the minimum sentence as set forth above, 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 defendant is sentenced as set forth in this Plea Agreement.
In addition, the Petitioner stated in paragraph 23 of the Plea Agreement that he was not coerced into waiving his right to collateral attack and he waived his right to collateral attack because he "personally believes that it is in his best interest to do so in order to obtain the benefit of the concessions made by the United States in this agreement." On June 11, 2009, the Petitioner received the benefit of his bargain when he received the mandatory minimum sentence of fifteen years imprisonment.
Over a year later, on January 5, 2011, the Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1). In his Motion, the Petitioner asks this Court to vacate his sentence because he believes his prior drug offense should not have been used to determine whether he was an Armed Career Criminal. The government filed its Motion to Dismiss (#4) on January 11, 2011, arguing that the Court need not consider the merits of Petitioner's Motion (#1) for two reasons: (1) the Petitioner is barred by his previous wavier of the right to file a motion pursuant to § 2255; and (2) Petitioner's motion is untimely.
The Seventh Circuit has never been hesitant to hold criminal defendants to their promises. Roberts v. United States, 429 F.3d 723, 723 (7th Cir. 2005). Thus, as a general rule, the Seventh Circuit enforces plea agreements in which the defendant voluntarily waives his right of collateral attack. Roberts, 429 F.3d at 723; Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999). However, justice dictates that this general rule give way when the defendant asserts a collateral attack which relates "directly to the negotiation of the waiver." Jones, 167 F.3d at 1145. As the Seventh Circuit has written, this exception is limited to claims of ineffective assistance of counsel in the negotiation of the plea agreement and in situations where the defendant did not knowingly or voluntarily relinquish his rights. Jones, 167 F.3d at 1145. Further, the Seventh Circuit requires that when alleging ineffective assistance of counsel or that the agreement was involuntary, the Petitioner must support the allegations by objective evidence that demonstrates "a reasonable probability that, but for counsel's advice, he would not have accepted the plea." McCleese v. U. S., 75 F.3d 1174, 1179 (7th Cir 1996).
In the instant case, it is clear from the language of the Plea Agreement that the Petitioner waived his right to collaterally attack his sentence pursuant to § 2255. In addition, the Petitioner only alleged that the Plea Agreement was not knowingly and voluntarily made and that his counsel was ineffective in negotiating the waiver after the government mentioned in its Motion to Dismiss (#4) that those are the only grounds the Petitioner can use to collaterally attack his sentence. Subsequently, in his Reply, (#7) the Petitioner did not adequately present objective evidence or any other basis to establish that there was a reasonable probability that, but for his counsel's advice, he would have risked facing the maximum sentence of life imprisonment in order to preserve his right to collaterally attack his sentence. Instead, the Petitioner acknowledged in open court and in paragraph 30 of the Plea Agreement that he was both satisfied with the legal services provided by his attorney and that he voluntarily entered into the agreement in order to gain the benefit of the promises made by the United States.
Regardless of whether the Petitioner is able to bring forth sufficient allegations concerning the negotiation of the waiver, the Petitioner's § 2255 Motion (#1) is untimely and is thus barred. According to the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2255(f), the period for filing a § 2255 motion beings to run from the latest of: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making the motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). In this case only the first and third limitations are relevant.
The Petitioner's judgment became final on June 25, 2009, ten days after the district court entered its written order of judgment and conviction. Fed. R. App. 4(b).*fn1 Therefore, Petitioner had one year, or until June 25, 2010, to file his Motion. See United States v. Marcello, 112 F.3d 1005, 1010 (7th Cir. 2000) (adopting the anniversary rule for determining the date a § 2255 motion was due). Even under the "prison mailbox" rule, the Petitioner's Motion (#1) is untimely because the earliest the Petitioner could have mailed the Motion was December 29, 2010, over six months too late. Houston v. Lack, 487 U.S. 266, 270 (1988); see also Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999) (extending the prison mailbox rule to prisoners filing pro se habeas corpus petitioners). In the Petitioner's Motion (#1) he claims he is entitled to relief based upon a "new Supreme Court ruling" in Chambers v. United States. 555 U.S. 122 (2009). However, Chambers was decided in January of 2009, before the Petitioner pleaded guilty on March 16, 2009 and before the Petitioner was sentenced on June 11, 2009. The plain language of 28 U.S.C. § 2255 requires the period of limitation to run from the latest of the four options outlined in subsection (f). Since the Supreme Court's ruling in ...