The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
Wednesday, 10 August, 2011 02:51:16 PM Clerk, U.S. District Court, ILCD
Before the Court is the United States of America's Motion to Dismiss Mikel Freeman's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (RII.6).*fn1 For the following reasons, Respondent's Motion is GRANTED and the Petition is DISMISSED WITH PREJUDICE.
On January 28, 2009, an indictment was returned against Mikel Freeman, charging him with Conspiracy to Commit Mail Fraud and Bank Fraud, in violation of 18 U.S.C. § 371 (Count 1); Bank Fraud, in violation of 18 U.S.C. §1344 (Counts 2 -5); Bank Fraud, in violation of 18 U.S.C. § 1344 (Counts 6 - 9); Mail Fraud, in violation of 18 U.S.C. § 1341 (Counts 10 - 14); Conspiracy to Commit Money Laundering, in violation of 18 U.S.C. § 1956 (Count 15); Money Laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Counts 16 - 18); Money Laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Counts 19 - 21); and Money Laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Counts 22 - 23). (RI.1) On April 20, 2009, a change of plea hearing was held. (RI. d/e 4/20/09). A written plea agreement (the "Plea Agreement") was also filed on that date, wherein Freeman agreed to plead guilty to Counts 6 and 15 of the Indictment. He acknowledged that Count 6 carried a maximum penalty of 30 years of imprisonment, while Count 15 had a maximum term of imprisonment of 20 years, and that the prison terms could be ordered to be served consecutively. He further waived his right to appeal his conviction and/or sentence, and waived his right to collaterally attack his conviction and/or the sentence imposed. The government agreed to recommend a three point reduction in offense level based on U.S.S.G. § 3E1.1 and § 3E1.1(b)(2). The government further agreed to dismiss the remaining counts of the Indictment against Freeman. (RI.23) This Court then conducted a plea colloquy, and found Freeman to be fully competent and capable of entering an informed plea. It also found that he was aware of the nature of the charges against him and the consequences of his plea of guilty, and that the plea of guilty was a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of the offense. (P.Tr.44)
On September 16 and 21, 2009, a sentencing hearing was held. (RI. d/e 9/16/09, 9/21/09). This Court determined Freeman's offense level to be 30, and his Criminal History Category to be I. (RI.54). His advisory guidelines sentence was 97 to 121 months. (RI.54). He was sentenced to 120 months of imprisonment on each of the two counts, to be served concurrently, five years of supervised release, a $200.00 special assessment, and restitution in the amount of $4,839,858.08. (RI.d/e 9/21/09). This Court's written Judgment was filed on September 29, 2009. (RI.53).
Freeman, through his counsel, filed a Notice of Appeal on September 29, 2009, which was docketed by the Seventh Circuit Court of Appeals as Case No. 09- 3443. (RI.61-64). After discussions with Freeman, his counsel filed a Motion for Dismissal and consent to the Dismissal of the Appeal.*fn1 (RII.6-1 at 1). The appeal was dismissed pursuant to F.R.A.P. 42(b) and Circuit Rule 51(f) on March 19, 2010.
Although Freeman waived his right to pursue collateral relief in paragraph 11 of the Plea Agreement, on March 4, 2011, he filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence, which was docketed as Case No. 11-1089. (RII.1) In that motion, Freeman alleged that his attorney was ineffective, and listed the following grounds for relief:
1) Counsel was ineffective by failing to note and argue United States v. Santos, 553 U.S. 507 (2008),in light of Freeman's money laundering conviction and sentence;
2) Counsel was ineffective in advising Freeman to enter into an agreement waiving the right to appeal;
3) Counsel was ineffective at sentencing by failing to note and argue that an improper measure for calculating the amount of loss was applied by the court with respect to the sentence for bank fraud;
4) Counsel was ineffective in advising Freeman to waive the right to collaterally challenge the judgment without first apprising Freemen of his right to representation by conflict-free counsel.
On July 6, 2011 the government filed the instant Motion to Dismiss and Response (RII.6).
The government moves for dismissal on the ground that "Freeman knowingly, freely and voluntarily waived his right to attack his conviction and/or sentence, both in the written Plea Agreement and in open court at the change of plea hearing." (RII.6 at 5). The government supports this position by noting that Petitioner's Plea Agreement contained the following language:
10. The defendant is aware that federal law, specifically, Title 28, United States Code, Section 1291, affords a defendant a right to appeal a final decision of the district court and that federal law, specifically, Title 18, United States Code, Section 3742, affords a defendant a right to appeal the conviction and/or sentence imposed. Understanding those rights, and having thoroughly discussed those rights with the defendant's attorney, the defendant knowingly and voluntarily waives the right to appeal any and all issues relating to this plea agreement and conviction and to the sentence, including any fine or restitution, within the maximum provided in the statutes of conviction, and the manner in which the sentence, including any fine or restitution, was determined, on any ground whatever, in exchange for the concessions made by the United States in this plea agreement, unless otherwise stated in this paragraph.
11. The defendant also understands that the defendant has a right to attack the conviction and/or sentence imposed collaterally on the grounds that it was imposed in violation of the Constitution or laws of the United States; that he received ineffective assistance from his attorney; that the Court was without proper jurisdiction; or that the conviction and/or 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 the defendant's attorney have reviewed Section 2255, and the defendant understands the rights under the statute. Understanding those rights, and having thoroughly discussed those rights with the defendant's attorney, the defendant knowingly and voluntarily waives the right to collaterally attack the conviction and/or sentence. The defendant's attorney has fully discussed and explained the defendant's right to attack the conviction and/or sentence collaterally 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 the defendant's attorney may have given the defendant, in exchange for the concessions made by the United States in this plea agreement, the defendant hereby knowingly and voluntarily waives his right to collaterally attack the conviction and/or sentence. The rights waived by the defendant include the right to challenge the amount of 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 Plea Agreement also specified that there were no other agreements between Freeman and the government:
1. This document contains the complete and only plea agreement between the United States Attorney for the Central District of Illinois and the defendant. This agreement supersedes and replaces any and all prior formal and informal, written and oral, express and implied, plea agreements between the parties. No other agreement, understanding, promise or condition between the United States Attorney for the Central District of Illinois and the defendant exists, except as set forth in this plea agreement.
Freeman executed the Plea Agreement, and attested that it was a voluntary agreement of his own free will.
29. I have read this entire Plea Agreement carefully and have discussed it fully with my attorney. I fully understand this Agreement and 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.
The Seventh Circuit has recognized the validity of § 2255 waivers in plea agreements, noting that such a waiver is enforceable if it is "knowing and voluntary and if the defendant cannot establish a claim of ineffective assistance of counsel in connection with negotiating the agreement." Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000); see also Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) ("waivers are enforceable as a general rule; the right to mount a collateral attack pursuant to § 2255 survives only with respect to those discrete claims which relate directly to the negotiation of the waiver."); see also, Bridgeman v. United States, 229 F.3d 589, 591 (7th Cir. 2000); Roberts v. United States, 429 F.3d 723, 724 (7th Cir. 2005) (waiver in plea agreement barred motion to vacate conviction or sentence). In those cases where a waiver exists and the petitioner has alleged ineffective assistance in connection with negotiating the plea agreement, the petitioner must establish both that "counsel's representation fell below an objective standard of reasonableness," and that "but for counsel's unprofessional errors, the result . . . would have been different." Strickland v. Washington, 466 U.S. 668, 687- 90 (1984).
The Plea Agreement specified that Freeman's decision to waive his right to collaterally challenge his conviction/sentence was a decision made solely by Freemen, notwithstanding any advice from his counsel.
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 the defendant's attorney may have given the defendant, in exchange for the concessions made by the United States in this plea ...