The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
E-FILED Wednesday, 17 October, 2012 08:14:04 AM Clerk, U.S. District Court, ILCD
This matter is before the Court on Respondent's Motion to Dismiss Petitioner's § 2255 Motion (Doc. 6). Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 on September 2, 2010, (Doc. 1), and amended his Motion on December 9, 2010. (Doc. 7). Petitioner also filed a response to Respondent's Motion to Dismiss (Doc. 9). For the following reasons, Respondent's Motion to Dismiss is granted, and Petitioner's § 2255 Motion is dismissed.
Petitioner pled guilty to one count of Drug Trafficking Conspiracy on September 8, 2008, pursuant to a written plea agreement. (Plea Agreement and Stipulation of Facts, United States v. Scott, No. 06-cr-10090 (C.D. Ill. 2008) [hereinafter Plea Agreement]). The plea agreement contained provisions waiving the right to appeal or collaterally attack the conviction or sentence. (Id. at 4-6). Petitioner was sentenced on September 29, 2009, to twenty years in prison with ten years of supervised release. (Doc. 7 at 1). Petitioner did not appeal his sentence.
In Petitioner's § 2255 Motion, as amended, he raises three claims: 1) ineffective assistance of counsel based on a number of grounds, including inadequate communication, failure to investigate, inaccurate representations regarding his potential sentence, negotiation of an unfavorable plea deal, and failure to discuss the waiver provisions in Petitioner's plea agreement, 2) unknowing plea based on an alleged misrepresentation of the minimum sentence, and 3) failure to receive a downward departure at sentencing based on only playing a minor role in the conspiracy. (Doc. 7).
Respondent filed the instant Motion to Dismiss based on the waiver of Petitioner's right to collaterally attack his conviction or sentence contained in the plea agreement. (Doc. 6 at 1). Petitioner responded by arguing that he did not know what he was waiving, that his counsel was ineffective for failing to discuss the waiver with him and negotiating an unfavorable deal, and that the plea agreement was not knowing and voluntary based on his misunderstanding of what the sentence was to be. (Doc. 9 at 2-12).
Waivers of the right to appeal or collaterally attack a conviction or sentence within a plea agreement are generally upheld and enforced. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999). However, such waivers do not apply if the "plea agreement was involuntary, the district court 'relied on a constitutionally impermissible factor (such as race),' the 'sentence exceeded the statutory maximum,' or the defendant claims 'ineffective assistance of counsel in connection with the negotiation of [the plea] agreement.'" Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011) (quoting Jones, 167 F.3d at 1144--45). These arguments can be addressed by the district court because they would have the effect of invalidating the waiver and plea agreement. See, e.g., United States v. Rhodes, 330 F.3d 949, 952 (7th Cir. 2003); Jones, 167 F.3d at 1145. As detailed below, Petitioner's collateral attack waiver is valid, the arguments that directly relate to the negotiation of the plea agreement are without merit, and the remaining claims are barred by the waiver.
A waiver of the right to appeal or collaterally attack a conviction or sentence will be enforced as part of the plea agreement "if its terms are 'express and unambiguous,' and the record shows that the defendant 'knowingly and voluntarily' entered into the agreement." United States v. Chapa, 602 F.3d 865, 868 (7th Cir. 2010) (citations omitted). To avoid the effect of his waiver, Petitioner must show that he did not know or understand the terms of the plea agreement, which requires an examination of "the language of the plea agreement itself and . . . the plea colloquy between the defendant and the judge." Id. In determining whether a petitioner understood and voluntarily accepted a waiver and plea agreement, the Court is entitled to rely on statements made under oath during the plea colloquy. See United States v. Weathington, 507 F.3d 1068, 1072 (7th Cir. 2007) ("Representations made by a defendant at a Rule 11 plea colloquy are presumed true.").
In the plea agreement, Petitioner purportedly acknowledges and waives his "right to collaterally attack the conviction and/or sentence" on any of the listed grounds or on the grounds that "the conviction and/or sentence was otherwise subject to collateral attack." (Plea Agreement at 5). The terms of Petitioner's collateral attack waiver are express and unambiguous, with a clear heading and unequivocal language. Petitioner does not claim otherwise. Instead he argues that he did not know what a § 2255 motion was, and his attorney never discussed either his right to collaterally attack his sentence or the meaning of ineffective assistance of counsel with him, so he could not have knowingly waived his rights. (Doc. 9 at 2, 7). Petitioner argues that his plea agreement was involuntary and unknowing because he did not know the consequences or that his sentence would not be as low as he had been told it would be. (Doc. 7 at 9-10).
First, the argument that his plea was not knowing and voluntary is contradicted by the relief requested: Petitioner only seeks a reduction in his sentence, and does not wish to have his guilty plea vacated. (Doc. 1 at 25; Doc. 9 at 5). This severely undercuts any argument that the plea agreement was involuntary. See United States v. Wenger, 58 F.3d 280, 282-83 (7th Cir. 1995). In fact, it is not clear that the Court has the authority to consider Petitioner's claim that his plea is involuntary if he does not seek to have it vacated. See, e.g., United States v. Sura, 511 F.3d 654, 655 (7th Cir. 2007); Wenger, 58 F.3d at 282-83 ("Waivers of appeal must stand or fall with the agreements of which they are a part. . . . Defendants must take the bitter with the sweet."). Resolving that doubt in Petitioner's favor, the Court considers his argument and finds that it is without merit.
The plea agreement language and Petitioner's plea colloquy testimony contradict the assertions that his plea and waiver were not knowing and voluntary. The plea agreement, signed by Petitioner, states that "[t]he 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." (Plea Agreement at 5). Further, right above Petitioner's signature, the agreement states "I have read this entire Plea Agreement carefully and have discussed it fully with my attorney. I fully understand this Agreement, and I agree to it voluntarily and of my own free will." (Id. at 17). Regarding the potential sentence, the agreement accurately states the mandatory minimums applicable to Petitioner's case, and that the government could, in its sole discretion, move for a downward variance based on cooperation. (Id. at 3, 9). It contains no promises regarding the actual sentence he would receive. Even if both parties had mistakenly believed that Petitioner was eligible for a lower sentence, the plea agreement is not involuntary if the plea agreement made the potentially applicable mandatory minimum clear and the plea colloquy sufficiently covered the agreement's terms. See Chapa, 602 F.3dat 868-69.
Similarly, Petitioner's testimony from the plea colloquy demonstrates that his plea and collateral attack waiver were voluntary. During the plea colloquy, the undersigned engaged Petitioner in a detailed discussion of the elements of the crime to which he was pleading guilty, and Petitioner testified that he understood them. (Record of Proceedings, Change of Plea at 18-20, United States v. Scott, No. 06-cr-10090 (C.D. Ill. 2008) [hereinafter Tr.]). The Court also thoroughly explained the sentencing guidelines, how the sentence would be calculated, and that Petitioner could face a mandatory life sentence based on prior ...