IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
September 10, 2012
JOHN A. BARNES, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Stiehl, District Judge:
MEMORANDUM & ORDER
Before the Court is petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The petitioner was convicted, after a plea of guilty, on two counts of distribution of crack cocaine. United States v. Barnes, No. 10-30004 (S.D. Ill. 2010). As part of that plea of guilty, the petitioner entered into an appellate waiver (See, para. III-1; Doc. 36, United States v. Barnes, No. 10-30004). He now seeks habeas review, asserting ineffective assistance of counsel for failing to object to the career offender sentencing enhancement based on an Illinois assault conviction from 1998; for failing to file a timely notice of appeal; and for failing to object to the career offender guidelines, which amounted to a sentence which was cruel and unusual punishment.
The Court has conducted several threshold inquiries. Petitioner is a federal prisoner, in custody, and this is the Court that imposed his sentence. See 28 U.S.C. § 2255(a). His claims for relief rely upon the grounds that his sentence was imposed "in violation of the Constitution or laws of the United States." See id. The motion was filed within one year of the date on which petitioner's conviction became final. See Clay v. United States, 537 U.S. 522, 525 (2003); 28 U.S.C. § 2255(f). This is not a "second or successive" motion that would require leave from the court of appeals. 28 U.S.C. § 2255(h). In his plea agreement, petitioner waived his right to contest his conviction and sentence under any provision of federal law, including § 2255 (Doc. 36, 10-30004). However, such a waiver, though binding in other respects, does not prevent review of an assertion that the plea agreement itself was a product of ineffective assistance of counsel. United States v. Jemison, 237 F.3d 911, 916, n.8 (7th Cir. 2001).
Accordingly, the Court DIRECTS the Government to respond to petitioner's motion (Doc. 1), attaching all relevant portions of the record, within forty-five (45) days of the date of this Order.
IT IS SO ORDERED.
DISTRICT JUDGE WILLIAM D. STIEHL
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