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Weir v. United States

United States District Court, C.D. Illinois

July 26, 2013

RICKEY E. WEIR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

Rickey E Weir, Petitioner, Pro se, MORGANTOWN, WV.

For United States of America, Respondent: Eric I Long, Patrick D Hansen, LEAD ATTORNEYS, U.S. ATTY, Springfield, IL.

OPINION

ORDER OF DISMISSAL

Richard Mills, United States District Judge.

Petitioner Rickey E. Weir's Motion to Vacate, Set Aside, or Correct Sentence is dismissed for the following reasons.

Page 1128

I.

A.

In April and May of 2013, Weir filed a number of documents in his criminal case which indicated that a Motion under 28 U.S.C. § 2255 might be filed soon. See Letter from Rickey Weir Requesting New Sentence [d/e 114], Verified Motion for the Entry of an Order Directing Trial Counsel to Produce/Turn Over Case File Documents [d/e 115], Letter from Ricky Weir [d/e 116], Motion for Release Pending Appeal [d/e 117], and Letter from Rickey Weir [d/e 118], all in Case No. 07-cr-30091.

Weir stated in these documents, among other things, that he had a pending re-sentencing hearing before the Court, that he suspected that trial counsel had failed to file an appeal as requested, that the same attorney had for years been leading him to believe that there was an appeal pending, that his numerous attorneys from a variety of civil and criminal action should be directed to furnish Weir copies of documents (at Weir's expense) to help him prepare a Section 2255 action, and asking that the Court provide him a referral for a criminal attorney.

The Court denied the various forms of relief requested, and noted that Weir had waived his collateral attack and appeal rights pursuant to the plea agreement. See Text Order of June 24, 2013, in Case No. 07-cr-30091.

B.

On July 15, 2013, Weir filed a Motion to Vacate, Set Aside or Correct Sentence [d/e 1] and a Memorandum of Law [d/e 2].

He alleged that his trial attorney had been ineffective at a number of points throughout his case. He acknowledged that his Motion was not timely, but argued that equitable tolling applied, because his attorney had deceived him into thinking that he had a pending appeal.

He did not allege that counsel was ineffective in negotiating the waiver of collateral attack rights.

Weir made the following argument in his Memorandum [d/e 2]:

On February 12, 2009, the Court accepted Weir's plea without conducting a full and constitutionally required Rule 11 plea colloquy hearing. While advising Weir that he was waiving his right to a jury trial and while discussing, in general terms, the terms of the Government's proposed plea agreement, at no time did, the Court ask Weir: (1) whether he was satisfied with the performance of trial counsel(s) up to and including February 12, 2009; (2) whether he waived all or some of his Appellate rights; (3) whether he was promised anything by his trial counsel concerning sentencing.
Based upon the " flaws" in the Court's plea colloquy with Weir, it was [incumbent] upon trial counsel to object to the Rule 11 violations which rendered Weir's plea as being unknowing and involuntary, Attorney Meczyk's failure to either remedy the situation or to, subsequent to the Court's acceptance of Weir's guilty plea to move to withdraw Weir's plea as Weir requested of trial counsel.

Id. at 16.

Weir supplemented his Memorandum with (1) his affidavit, and (2) a printout from the Bureau of Prisons listing calls made to a Chicago phone number.

Weir then further supplemented his Motion. See Amendment to Motion [d/e 5] and Exhibit [d/e 5-1]. The supplemental letter supposedly shows that Weir's trial attorney had recently given Weir's divorce attorney the impression that there was to be a re-sentencing hearing in Springfield, and that there was some ongoing negotiation

Page 1129

or discussion regarding his sentence with the U.S. Attorney's Office.

II.

During his jury trial in February 2009, Weir pled guilty to health care fraud pursuant to a plea agreement.

A.

In the Plea Agreement [d/e 86], the Government agreed to dismiss the remaining charges pending against Weir -- 15 counts of mail fraud. See id. at 9.

In exchange, Weir agreed to waive all appellate and collateral attack rights. See id. at 4-5.

The Plea Agreement stated the following with respect to these waivers:

Waiver of Right of Appeal from Conviction and Sentence
The defendant is aware that federal law, specifically, Title 28, United States Code, Section 1291, affords a defendant a right to appeal a final decision of the district court and that federal law, specifically, Title 18, United States Code, Section 3742, affords a defendant a right to appeal the conviction and/or sentence imposed. Understanding those rights, and having thoroughly discussed those rights with the defendant's attorney, the defendant knowingly and voluntarily waives the right to appeal any and all issues relating to this plea agreement and conviction and to the sentence, including any fine or restitution, within the maximum provided in the statutes of conviction, and the manner in which the sentence, including any fine or restitution, was determined, on any ground whatever, in exchange for the concessions made by the United States in this plea agreement.

Waiver of Right to Collateral Attack

The defendant also understands that he has a right to attack the conviction and/or sentence imposed collaterally on the grounds that it was imposed in violation of the Constitution or laws of the United States; that he received ineffective assistance from his attorney; that the Court was without proper jurisdiction; or that the conviction and/or sentence was otherwise subject to collateral attack. The defendant understands such an attack is usually brought through a motion pursuant to Title 28, United States Code, Section 2255. The 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. The defendant's attorney has fully discussed and explained the defendant's right to attack the conviction and/or sentence collaterally with the defendant. The defendant specifically acknowledges that the decision to waive the right to challenge any later claim of the ineffectiveness of the defendant's counsel was made by the defendant alone notwithstanding any advice the defendant may or may not have received from the defendant's attorney regarding this right. Regardless of any advice the defendant's attorney may have given the defendant, in exchange for the concessions made by the United States in this plea agreement, the defendant hereby knowingly and voluntarily waives his right to collaterally attack the conviction and/or sentence. The rights waived by the defendant include his right to challenge the amount of any fine or restitution, in any collateral attack, including, but not limited

Page 1130

to, a motion brought under Title 28, United States ...

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