The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Murat Kapan's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"). For the following reasons, the Motion is dismissed.
On October 29, 2009, pursuant to a written Plea Agreement, Murat Kapan (hereinafter, the "Petitioner" or "Kapan") pled guilty to a superseding information charging him with three counts of using a telephone in facilitating and causing the commission of a drug trafficking offense, in violation of 21 U.S.C. § 843(b). Following the Court's acceptance of the Petitioner's guilty plea on May 6, 2010, the Court sentenced Petitioner to a term of 84 months imprisonment.
On May 31, 2011, Petitioner filed the instant Motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 ("Section 2255"). In that Motion, Kapan claimed he was entitled to relief because his attorney was ineffective. Specifically, Kapan alleged ineffective assistance of counsel for his attorney's failure to (1) file a notice of appeal; (2) object to the finding that the underlying drug trafficking offense involved crack cocaine and to the Court's imposition of consecutive sentences; and (3) obtain proper credit for good-time behavior while in federal custody.
On July 5, 2011, this Court dismissed Kapan's third argument determining that challenge with respect to good-time credit must be brought under 28 U.S.C. § 2241 and finding that Kapan was required to bring this challenge within the district in which he is confined. [See Dkt. 4]. In that July 5 Order, the Court directed the Government to respond to the remainder of Kapan's Motion, and granted Kapan time to file a Reply to the Government's response.
On August 4, 2011, the Government responded to Kapan's Section 2255 petition by filing a Motion to Dismiss. In the Government's Motion, it contends that Kapan's Section 2255 petition should be dismissed pursuant to the Plea Agreement.
Subsequently, Kapan twice moved for an extension of time to file his Reply. The Court granted both of these Motions, and extended Kapan's time to file a Reply until December 30, 2011. [See Dkt. 7 & Dkt. 9]. Despite the Court's extensions, Kapan failed to file a timely Reply and instead did not file until January 13, 2012. Notwithstanding this tardiness, the Court will consider Kapan's Reply brief when determining whether Kapan's Section 2255 Petition should be dismissed.
Under Section 2255 a prisoner may petition the court which imposed his sentence to vacate, set aside, or correct the sentence on the basis that the sentence imposed is in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose the sentence, or that the sentence was in excess of the maximum authorized by law. See Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir. 1992). To receive relief under Section 2255, a prisoner must show a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979). Alternatively, if a prisoner can show the trial court made "an omission inconsistent with the rudimentary demands of fair procedure" relief can also be provided. Hill v. United States, 368 U.S. 424, 428 (1962).
A defendant can waive his right to challenge a sentence in a plea agreement. The Seventh Circuit strictly enforces such waivers. See United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005). Indeed, the Seventh Circuit instructs that when a defendant expressly waives the right to file a Section 2255 motion in a plea agreement, the defendant may then file a Section 2255 motion only if he can demonstrate that the waiver was either unknowing or involuntary, or was the result of ineffective assistance of counsel. Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000). Since Mason, the Seventh Circuit has held that a defendant can also attack a sentence in a Section 2255 motion notwithstanding a waiver, if the defendant alleges that the plea agreement fails on contractual grounds, "such as mutual mistake or breach." Cantu v. United States, No. 3:12-CV-181 RM, 2012 U.S. Dist. LEXIS 134663 at *10 (N.D. Ind. Sept. 20, 2012) citing United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005).
A. Preclusive Effect of Plea Agreement Waiver
The Government argues that the Court should dismiss Kapan's Section 2255 Motion because Kapan waived his right to file such a motion in his Plea Agreement. In relevant part, the Plea Agreement states:
Defendant further understands he is waiving all appellate issues that might have been available if he had exercised his right to trial. Defendant is aware that Title 28 United States Code Section 1291, and Title 18 United States Code 3742, afford a defendant the right to appeal his conviction and the sentence imposed. Acknowledging this, defendant knowingly waives the right to appeal his conviction, any pre-trial rulings by the Court, and any part of the sentence (or manner in which that sentence was determined), including any term of imprisonment and fine within the maximums provided by law, and his attorney's alleged failure or refusal to file a notice of appeal, in any collateral attack or future challenge, including but not limited to a motion brought under Title 28, United States Code, Section 2255 . . . The waiver in this paragraph does not apply to a claim of involuntariness, or ineffective assistance of counsel, which relates directly to this waiver or to its negotiation . . .
Govt.'s Mot. to Dismiss Def.'s Pet. to Vacate, Set Aside, or Correct Sentence at 3; United States v. Kapan, No. ...