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Monte Boatman v. United States of America

November 5, 2012

MONTE BOATMAN, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Stiehl, District Judge:

ORDER

Before the Court is petitioner Monte Boatman's pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Doc. 1). The Court has completed a preliminary review of the motion pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts.

BACKGROUND

On November 19, 2010, petitioner pleaded guilty to conspiracy to interfere with commerce by threats or violence, 18 U.S.C. § 1951(a); interference with commerce by threats or violence, § 1951(a) and 2; and possession of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1). He was sentenced to 51 months in prison on each of the first two counts, to be served concurrently, and 120 months on the last count, to be served consecutively with the first two counts, for a total of 171 months (Doc. 190, Case No. 09-CR-30084-005-WDS). Judgment was entered on November 22, 2010 (Doc. 193, id.). Petitioner did not appeal. He filed the § 2255 motion now under review on October 10, 2012.*fn1

In this motion, petitioner separates his claims into four grounds, but they are essen-tially one claim. He argues ineffective assistance of counsel in his guilty-plea proceeding. In support, he includes a letter from his defense attorney, Jeffrey J. Rosanswank, which, petitioner contends, shows that his plea agreement was involuntary due to threats by the government and promises of a specific sentence by his attorney and the government (Doc. 1, Ex. A). The letter states:

You will probably remember that the prosecutor threatened to make you take an open plea if you wouldn't agree to cooperate. However, even though he is no longer asking for your cooperation, he is willing to go ahead and agree to the minimum 41 months on the robbery count instead of leaving the guidelines open. .

The prosecutor continues to require that you not ask for a sentence of less than 41 months on the robbery count, but the judge would still have the right to give you a lower sentence if he wants to. As I have promised you, I will do everything I can to convince the judge at sentencing to give you the lowest sentence possible on the robbery charge. (Doc. 1, Ex. A, p. 2). This letter is dated August 10, 2010, but petitioner just received it from jail officials on September 13, 2012. He believes it is therefore newly discovered evidence showing that the assistant U.S. attorney made repeated threats against him "through the entire time" of the plea negotiations, including the day before he entered his plea. He says he told his attorney repeatedly he did not want to plead guilty, but felt he was forced to due to the government's threats, which are outside the Court's record. His attorney allegedly assisted the government in threatening and coercing him to plead guilty. He contends that his plea agreement (and the waiver of collateral review) is void because the government's threats made the agreement unknowing and involuntary. See Machibroda v. United States, 368 U.S. 487, 493 (1962).

ANALYSIS

A federal prisoner may attack his sentence on the grounds that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).

Under the Rules Governing Section 2255 Proceedings for the United States District Courts:

If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response . or to take other action the judge may order.

Rule 4(b). Similarly, 28 U.S.C. § 2255(b) states that the district court may deny the motion without holding a hearing or requiring the government to respond if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." The court must accept a petitioner's factual allegations as true "except to the extent that they are inherently incredible, merely conclusory rather than statements of fact, or are contradicted by the record." Eaton v. United States, 458 F.2d 704, 706 (7th Cir. 1972).

Petitioner claims he was threatened by the government and his attorney throughout the entire time he was negotiating his plea, which rendered the plea unknowing and involuntary. A guilty plea "operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, 'with sufficient awareness of the relevant circumstances and likely consequences.'" Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).

Petitioner here is making only bare assertions that he was threatened. He does not say what the threats were or what his attorney's promises of a specific sentence were. The letter he attaches as an exhibit only undermines his claims. The only "threat" was to make petitioner take an open plea, which was within the government's discretion-it need not have offered petitioner a plea bargain at all.*fn2 See United States v. Hall, 212 F.3d 1016, 1022 (7th Cir. 2000); United States v. Springs, 988 F.2d 746, 749 (7th Cir. 1993). The only promise his attorney made in the letter was to do ...


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