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Arturo Ramirez, Jr v. United States of America

February 22, 2012

ARTURO RAMIREZ, JR., PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge:

Wednesday, 22 February, 2012 08:54:56 AM

Clerk, U.S. District Court, ILCD

ORDER

The Motion to Dismiss [d/e 7], filed by Respondent United States of America, is allowed for the following reasons.

I.

Petitioner Arturo Ramirez, Jr. filed a Motion to Vacate, Set Aside or Correct Sentence [d/e 1] on April 28, 2011, pursuant to 28 U.S.C. § 2255. In the Motion [d/e 1] and in an Additional Grounds [d/e 2] document, the Petitioner raised the following claims: (1) ineffective assistance of counsel, (2) perjury by a witness regarding a gap in videotape of traffic stop, and (3) the destruction of Illinois State Police cruiser involved in traffic stop, eliminating any opportunity to challenge functionality of video recording equipment. The Petitioner included a series of exhibits, located at Docket Entry 1-1, consisting of excerpts of the transcript of the suppression hearing held on January 28, 2009, in Case No. 07-cr-30022.*fn1

On June 15, 2011, Respondent United States filed a Motion to Dismiss Petitioner's Motion [d/e 7]. The Government argued that the Petitioner waived his rights to collaterally attack his sentence in his plea agreement with the Government. See Motion to Dismiss [d/e 7]. The Government cited authority from the U.S. Court of Appeals for the Seventh Circuit regarding the enforceability of collateral attack waivers. See id.

In the plea agreement in his criminal case, the Petitioner waived his right to appeal the conviction and sentence, and the right to collaterally attack the conviction or sentence. See Plea Agreement [d/e 84], ¶¶ 10-11, in Case No. 07-cr-30022. The collateral attack waiver states the following:

The defendant also understands that he 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 his rights under the statute. Understanding those rights, and having thoroughly discussed those rights with the defendant's attorney, the defendant knowingly and voluntarily waives his 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 his 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.

Plea Agreement [d/e 84], ¶ 11, in Case No. 07-cr-30022.

The Court has extended the deadline for the Petitioner to respond to the Government's Motion to Dismiss. See Text Order of September 29, 2011. However, the Petitioner has failed to timely respond to the Government's Motion.

II.

The U.S. Court of Appeals for the Seventh Circuit has repeatedly held that a proper waiver of the right to collaterally attack a sentence under 28 U.S.C. § 2255 will be enforced. See Roberts v. United States , 429 F.3d 723, 724 (7th Cir. 2005) (dismissing a § 2255 appeal on the basis of waiver while noting that the court has "never been reluctant to hold criminal defendants to their promises"); Bridgeman v. United States , 229 F.3d 589, 591 (7th Cir. 2000) ("A plea agreement that also waives the right to file a § 2255 motion is generally enforceable"); Mason v. United States , 211 F.3d 1065, 1069 (7th Cir. 2000).

There are only two exceptions to the enforceability of such a waiver: (1) if it was involuntary, or (2) if there is a claim of ineffective assistance of counsel in connection with the ...


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