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Dianne Freeman v. United States of America

December 6, 2011

DIANNE FREEMAN, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED

Tuesday, 06 December, 2011 01:12:05 PM

Clerk, U.S. District Court, ILCD

OPINION & ORDER

This matter is before the Court on Petitioner's pro se Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1), and Respondent's Motion to Dismiss Petitioner's § 2255 Motion (Doc. 6), to which Petitioner has responded in opposition (Doc. 7). For the following reasons, Respondent's Motion to Dismiss is granted, and Petitioner's § 2255 Motion is dismissed.

Petitioner has requested an evidentiary hearing on her claims. She is entitled to an evidentiary hearing only if she has alleged facts that, if proven, would entitle her to relief. Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). As the Court finds that Petitioner's § 2255 Motion raises no cognizable claim, and as any factual issues relevant to Petitioner's claims can be resolved on the record, an evidentiary hearing is not required. Oliver v. United States, 961 F.2d 1339, 1343 n. 5 (7th Cir. 1992) (citing United States v. Frye, 738 F.2d 196 (7th Cir. 1984) ("No hearing is required in a section 2255 proceeding if the motion raises no cognizable claim,. or if the factual matters raised by the motion may be resolved on the record before the district court.").

PROCEDURAL HISTORY

Petitioner was indicted on January 28, 2009; she was charged with Conspiracy to Commit Mail Fraud, Bank Fraud, Conspiracy to Commit Money Laundering, and Embezzlement and Misapplication by Bank Employee. (09-cr-10006: Doc. 1). On April 20, 2009, Petitioner pled guilty to Conspiracy to Commit Money Laundering, and Embezzlement and Misapplication by Bank Employee, pursuant to a plea agreement filed on that date. (09-cr-10006: Doc. 26). The plea agreement contained provisions waiving the right to appeal the conviction or sentence, as well as to collaterally attack the conviction or sentence. (09-cr-10006: Doc. 26 at 6-8). She was sentenced to 97 months incarceration, three years supervised release, restitution in the amount of $4,839,858.08 jointly and severally with co-defendant Mikel Freeman (her husband), and a $200 special assessment. (09-cr-10006: 9/21/09 Minute Entry). Petitioner's counsel filed a Notice of Appeal on September 29, 2009, which was voluntarily dismissed on March 19, 2010. (09-cr-10006: Doc. 101).

The Court received Petitioner's instant § 2255 Motion on March 3, 2011 (Doc. 1). In it, Petitioner claims that her counsel provided ineffective assistance in several ways: he failed to research applicable law relating to the money laundering count; he erroneously advised Petitioner to plead guilty to that count; he failed to argue that Mikel Freeman's bank fraud loss calculations should not be used in calculating Petitioner's embezzlement sentence; he advised Petitioner to agree to a plea bargain waiving her right to appeal; he moved for the dismissal of her appeal without filing a brief; he advised Petitioner to agree to waive her right to collaterally attack his effectiveness without properly advising her; and he moved for the dismissal of her appeal without her knowledge or consent.

DISCUSSION

As noted above, Petitioner's plea agreement contained provisions waiving her right to appeal or collaterally attack her conviction or sentence, including on the grounds of ineffective assistance of counsel; Respondent now relies on that waiver of Petitioner's collateral attack rights in its Motion to Dismiss. (09-cr-10006: Doc. 26 at 6-8; Doc. 6). Such waivers are generally upheld and enforced, unless the "plea agreement was involuntary, the district court 'relied on a constitutionally impermissible factor (such as race),' the 'sentence exceeded the statutory maximum,' or the defendant claims 'ineffective assistance of counsel in connection with the negotiation of [the plea] agreement.'" Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011) (quoting Jones v. United States, 167 F.3d 1142, 1144--45 (7th Cir. 1999)). Here, Petitioner argues that the waiver of her right to collaterally attack her sentence under § 2255 is unenforceable because it is tainted by the ineffective assistance of her counsel.*fn1 A petitioner who wishes to have a plea agreement's terms invalidated must show both that her attorney provided constitutionally ineffective assistance, and that "there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

Petitioner argues in part that the waiver was not executed freely, knowingly, and voluntarily, because neither her counsel nor the Court advised her "of her right to conflict free counsel." (Doc. 1 at 12). Petitioner cites to no specific conflict of interest between herself and her counsel, but instead appears to argue that her counsel was inherently conflicted in advising her as to the waiver of the right to challenge his effectiveness. If this argument were meritorious, almost all appeal and collateral-attack waivers would be invalid, as most defendants are advised as to those waivers by the very attorneys whose representation would be at issue. Related to this argument is Petitioner's claim that her counsel was ineffective simply because he advised her to agree to a waiver of her appeal and collateral attack rights, and that the waiver is thus unenforceable.*fn2 It is well-established that such waivers are enforceable in most cases -- they are not inherently invalid. These arguments are based on the idea that waivers of appeal and collateral attack rights are inherently unfair and should not be enforced, but this is not the rule in the Seventh Circuit. Jones, 167 F.3d at 1145 ("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.").

A waiver will be enforced "if its terms are 'express and unambiguous,' and the record shows that the defendant 'knowingly and voluntarily' entered into the agreement. United States v. Chapa, 602 F.3d 865, 868 (7th Cir. 2010) (quoting United States v. Jemison, 237 F.3d 911, 917 (7th Cir. 2001); United States v. Woolley, 123 F.3d 627, 632 (7th Cir. 1997)). To avoid the effect of her waiver, Petitioner must show that she did not know and understand either the terms of the plea agreement or the elements of the crime to which she pled guilty, which requires an examination of "the language of the plea agreement itself and also.the plea colloquy between the defendant and the judge." Id. (citing United States v. Sura, 511 F.3d 654, 661 (7th Cir. 2007); Woolley, 123 F.3d at 632). Here, there is no doubt that the terms of the collateral attack waiver are "express and unambiguous," and Petitioner does not claim otherwise.

Likewise, Petitioner cannot overcome her own testimony that she knew and understood both the elements of the crimes to which she pled and the terms of the agreement. During the plea colloquy, the undersigned engaged Petitioner in a detailed discussion of her plea agreement, as well as of the crimes to which she was pleading guilty. (09-10006: Doc. 108, hereinafter referred to as "Tr."). The Court explained the elements of each crime in detail, and Petitioner testified that she understood them; Petitioner later described for the Court her activities related to both the money laundering and embezzlement counts. (Tr. 7-10, 22-24). The Court also explained that Petitioner potentially faced imprisonment of up to 50 years, and that the sentence imposed may vary from what her attorney had estimated. (Tr. 10-14). As to the plea agreement's terms, as in Chapa, this judge, also an "experienced trial judge," "conducted a searching inquiry to ascertain that the Defendant understood all of the terms of the plea agreement. The judge highlighted all of the terms including potential penalties and sentencing, and [defendant] indicated that [s]he understood them." Id. at 869. Petitioner "acknowledged that [s]he had waived [her] right to appeal [and collateral attack], and ...


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