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Larry E. Starks v. United States of America

May 11, 2012

LARRY E. STARKS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

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 Larry E. Starks filed a Motion to Vacate, Set Aside or Correct Sentence [d/e 1] on December 8, 2010, pursuant to 28 U.S.C. § 2255. In the Motion [d/e 1], the Petitioner raised the following claims: insufficiency of indictment, illegal arrest, ineffective assistance of counsel, and a claim related to drug weight.

The Petitioner subsequently provided additional information about his original claims, see First Motion to Supplement [d/e 6], and added more claims: involuntary plea agreement, grand jury perjury, and breach of plea agreement, see Second Motion to Supplement [d/e 9] and Third Motion to Supplement [d/e 12].

On January 13, 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 regarding the enforceability of collateral attack waivers. See id.

The relevant portion of the plea agreement states the following:

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 not withstanding 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, including the opportunity to cooperate with the United States, 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 [d/e 14] in Case No. 09-cr-30070, ¶ 30, pages 10-11 (emphasis added).

The Petitioner responded to the Motion to Dismiss, stating the following:

Petitioner does not allege his acceptance of the Plea Agreement and waiver was unknowingly or involuntary. Rather, Petitioner alleges that his waiver was improper because Counsel did not provide adequate assistance by improperly coercing Petitioner into accepting the terms of the waiver; when there was sufficient evidence in the Discovery Material that clearly established indictment insufficiency (incurable defect that contained a prejudicial variance between the allegations and the proof), illegal arrest (Zealous unconstitutional conduct that led to the fabrication of the Document of Certification for Probable Cause for arrest with a warrant).

Response [d/e 8], page 1 (emphasis in original).

In the remainder of his Response, the Petitioner reiterated his allegations regarding an insufficient indictment and that his arrest was illegal. He further stated that defense counsel had a conflict of interest. The Petitioner argued that, but for ineffective assistance of counsel, he would have gone to trial.

In its Reply [d/e 10], the Government asserted that the Petitioner's arguments are not directly related to the negotiation of the waiver of collateral attack rights. The Government argued that the Petitioner's arguments "are merely a restatement of other ...


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