The opinion of the court was delivered by: Richard Mills, U.S. District Judge:
Friday, 31 August, 2012 04:24:34 PM Clerk, U.S. District Court, ILCD
Pending before the Court is Petitioner Cory J. Call's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence [d/e 1]. The United States has filed a Response [d/e 10] and the Petitioner has filed a Reply [d/e 11] to the Response.
On October 20, 2010, in case number 10-CR-30066, the Petitioner entered an open plea of guilty to the three-count Indictment, charging him with Possession with the Intent to Distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C); Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A); and Possession of a Firearm by a Felon, in violation of 18 U.S.C. § 922(g)(1).
During the plea colloquy, United States Magistrate Judge Byron G.
Cudmore informed the Petitioner that he had an "absolute right" to
plead not guilty and proceed to a jury trial. See Plea 6.*fn1
The Petitioner was advised of the statutory penalties for
each count, including the mandatory, consecutive 5-year penalty for
Count 2. See Plea 3 and 13-15. The Petitioner then pled guilty to each
count. See Plea 20-21.
On March 3, 2011, the Petitioner was sentenced to 97 months in prison, including 37 months on Counts 1 and 3 to run concurrently, and 60 months on Count 2, to run consecutively to the concurrent terms. The Petitioner filed a Notice of Appeal as to the sentence. On September 14, 2011, the United States Court of Appeals for the Seventh Circuit affirmed the sentence.
On February 3, 2012, the Petitioner filed a timely Motion under § 2255.
The Petitioner acknowledges he is guilty as to Counts 1 and 3 and challenges his conviction only on Count 2, which charged him with possession of a firearm in furtherance of a drug trafficking crime. That count contained the mandatory, consecutive 60-month sentence.
Pursuant to Ground One, the Petitioner asserts that he was not aware at the time that he could enter a plea of guilty to only Count 1 and Count
3. As to Ground Two, the Petitioner alleges he received ineffective assistance of counsel in violation of the Sixth Amendment because he was advised he would have to plead guilty to all three counts.
A. Whether Petitioner was aware of right to plead not guilty (1)
The Petitioner alleges that during the course of his change of plea
hearing, the Court did not make it clear that he had the right to
maintain his innocence and proceed to trial as to Count 2. Thus, he
did not know or understand that he could exercise his constitutional
right to proceed to
trial on Count 2. The Petitioner further contends that no evidence was
presented tending to show that a firearm had been used in the course
of a drug trafficking crime. At sentencing, Counsel emphasized that
although the firearms were kept in close proximity to the drugs, the
firearms were not used to assist the Petitioner in connection with the
growing or selling of marijuana. See Sentence 13-14.*fn2
He contends that the facts here are in contrast to most
prosecutions under § 924(c). The Petitioner asserts it is likely that
if Counsel at sentencing had represented him at the time of his plea,
then he would not have pled guilty to Count 2.*fn3
Therefore, he claims that his guilty plea as to Count 2 was neither
knowing nor intelligent.
The Petitioner emphasizes that he did not "use" the weapons in furtherance of drug trafficking. To the extent that the Government suggests the weapons were there for protection, the Petitioner contends that does not constitute a "use."
Because the Petitioner is challenging his guilty plea under § 2255, relief is available if the alleged legal error is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Marx v. United States, 930 F.2d 1246, 1250 (7th Cir. 1991). In order for a guilty plea to be constitutionally valid, it must be made "voluntarily, intelligently and knowingly." See Galbraith v. United States, 313 F.3d 1001, 1006(7th Cir. 2002). A plea is voluntary if it is not induced by threats or misrepresentations, and the defendant is advised of the direct consequences of the plea. See id. It is knowing and intelligent if "the defendant is competent, aware of the charges and advised by competent counsel." Id.
The Government contends the motion should be denied because the record establishes that Petitioner was aware of the charges against him, the consequences of his plea, and was advised by competent counsel.
"To ensure that guilty pleas are knowingly and intelligently made, Rule 11 requires that a district court accepting a guilty plea 'address the defendant personally in open court,' informing the defendant of six categories of rights and ensuring that he or she understands them--an exchange known as the Rule 11 colloquy." United States v. Blalock, 321 F.3d 686, 688 (7th Cir. 2003) (citations omitted). At a Rule 11 hearing, "the defendant may be placed under oath" and questioned by the court concerning the voluntariness of the plea. See Fed. R. Crim. P. 11(b)(1), (2).
In contending that Petitioner's § 2255 motion is without merit, the Government relies on the Rule 11 colloquy at his change of plea hearing. After the Petitioner was placed under oath, the following exchange took place:
The Court: Do you understand that you have an absolute right to continue to plead not guilty and have a jury trial? Do you understand that right?
The Court: Do you understand that you can waive those rights and plead guilty, if that's what you elect to do, so as long as I find you know what you're doing. Understood?
Petitioner: Yes, sir. *** The Court: And you must understand that if you plead guilty to these three counts and I accept your guilty pleas, you waive your right to both a jury and bench trial and the rights that go with each type of a trial. Understood?
Plea 6, 9. Following this exchange, the Petitioner was informed of the essential elements for each of the three counts. The Petitioner responded affirmatively when the Court inquired as to whether he understood ...