The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Wednesday, 08 June, 2011 03:51:05 PM
Clerk, U.S. District Court, ILCD
On September 2, 2010, Petitioner, Marion Jefferson, filed a pro se motion entitled "Reduction in Sentence," alleging that the court had sentenced him outside of the guideline range contained in his plea agreement and that he received ineffective assistance of counsel regarding the plea with the government (#1). The Petitioner was seeking relief that he could only obtain through 28 U.S.C. § 2255. The Government contends that the Petitioner's motion should be dismissed because Petitioner voluntarily waived his right to pursue such relief during his plea of guilty, and because it was filed more than one year after his conviction and sentence became final (#4). The Petitioner was given notice of the Government's motion (#5) but did not respond to the Government's motion to dismiss.
This court has carefully reviewed the record in this case and the arguments of the parties. Following this careful and thorough review, this court agrees with the Government that the Petitioner voluntarily waived his right to pursue relief under 28 U.S.C. § 2255. Therefore, Petitioner's Motion for a reduction in sentencing pursuant to 28 U.S.C. § 2255 (#1) is dismissed.
On May 5, 2006, in Case No. 06-CR-20032, Petitioner was charged by indictment with conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371 (Count 1); armed robbery, in violation of 18 U.S.C. § 1951 (Counts 6 and 8); and carrying and using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts 7 and 9).
On October 26, 2006, pursuant to a written plea agreement, Petitioner pled guilty to the aforementioned criminal charges. In exchange, the Government agreed that Petitioner had clearly demonstrated acceptance of responsibility for his criminal conduct and a two level reduction in his offense level was appropriate. The Government also agreed to move at sentencing for an additional reduction by one offense level if the Petitioner's offense level was 16 or greater because the defendant assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to plead guilty. The written plea agreement stated that the Petitioner knowingly and voluntarily waived his right to appeal from his conviction and/or sentence. Petitioner also waived his right to collaterally attack his sentence. The written plea agreement stated, in pertinent part:
WAIVER OF RIGHT TO COLLATERAL ATTACK
31. 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 attorneys, this Court was without proper jurisdiction 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, specifically including the opportunity to cooperate with the United States and possibly provide sufficient substantial assistance to induce a motion for a downward departure 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 sentence is within the maximum provided in the statutes of conviction. (Emphasis added).
ACKNOWLEDGMENT OF VOLUNTARINESS OF WAIVER
32. The defendant states that he has not been coerced, threatened, intimidated, or in any way involuntarily persuaded to waive his rights to appeal or collaterally attack his sentence by his attorney or anyone else. The defendant is waiving those rights because he personally believes it is in his best interest to do so in order to obtain the benefit of the concessions made by the United States in his agreement. The defendant understands the United States is unwilling to make some of those concessions unless he is willing to waive his rights to appeal or collaterally attack his sentence ...