The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Friday, 16 December, 2011 04:34:54 PM
Clerk, U.S. District Court, ILCD
Petitioner, Walter L. Bond, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) on February 25, 2011.*fn1 On September 26, 2011, Petitioner filed an Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#18). On October 27, 2011, the government filed its Response (#19) to the Petitioner's Amended Motion. On November 14, 2011, the Petitioner filed a Reply (#21) to the government's Response. For the following reasons the Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (#1) is DISMISSED.
On December 4, 2007, Petitioner was charged by indictment with one count of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C) in Case Number 07- CR-20113 in this court. On January 25, 2008, Petitioner pled guilty to the charged offense, pursuant to a written plea agreement. Prior to making the decision to enter into the plea agreement, Petitioner asked John Taylor ("Taylor"), his appointed counsel, to argue that his prior aggravated battery conviction was not a qualifying crime of violence for purposes of his possible status as a career offender. Taylor agreed to consider this request and argue against career offender status at the sentencing hearing. As part of the written plea agreement, Petitioner waived his right to collaterally attack his sentence in exchange for the opportunity to cooperate with the United States and possibly receive a recommendation for a reduced sentence. Specifically, the waiver in the plea agreement provided as follows:
The defendant also understands that he has a right to attack his conviction or sentence collaterally on the grounds that the Constitution or laws of the Unites States were violated, he received ineffective assistance from his attorney, this Court was without proper jurisdiction or the conviction 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 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 but has made no recommendation to the defendant as to the waiver of a motion under Title 28, United States Code, Section 2255. 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.
Plea Agreement ¶29-30. At Petitioner's change of plea hearing on January 25, 2008, Petitioner, under oath and in open court, stated that his guilty plea, including the waiver of appeal and collateral attack, was knowingly and voluntarily made. Additionally, Petitioner acknowledged that the decision to plead guilty to the charged offense and enter into the plea agreement was not contingent on any promises not contained in the written plea agreement.
Petitioner's sentencing hearing was held on April 21, 2008. Petitioner was subject to a statutory maximum sentence of 30 years imprisonment for his offense, because he had a prior felony drug conviction. Petitioner's Presentence Report ("PSR") classified Petitioner as a career offender based on his prior felony convictions for aggravated battery and possession of cocaine with the intent to distribute. Classified as a career offender, Petitioner faced an advisory sentencing guideline range of 188 to 235 months of imprisonment. At the sentencing hearing, this court conducted a thorough colloquy with Taylor, as well as Petitioner himself, ensuring that there were no objections to the PSR that classified Petitioner as a career offender. Taylor and Petitioner both affirmatively acknowledged to this court that they did not have any objections to any aspect of the PSR, including Petitioner's classification as a career offender.
The United States recommended a sentence of 188 months imprisonment, which was at the bottom of the advisory guidelines range, based on Petitioner's cooperation up to that point. Taylor also requested that this court impose a sentence at the bottom of the advisory guidelines range, arguing that Petitioner's classification as a career offender over-represented his criminal history because the prior aggravated battery conviction was based solely on a "smack in the head in a public place." This court imposed a sentence of 188 months based on the recommendation of the United States.*fn2 This court entered its written judgment in Petitioner's case on April 23, 2008. Petitioner's conviction became final on May 7, 2008, because Petitioner did not pursue a direct appeal within the time allowed. Thereafter, on September 5, 2008, Petitioner received additional benefit for his cooperation under the plea agreement. Specifically, the United States moved ...