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Burries v. United States
United States District Court, Seventh Circuit
September 23, 2013
DARNELL BURRIES, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MICHAEL P. McCUSKEY, District Judge.
Petitioner, Darnell Burries, filed this Motion to Vacate, Correct, or Set Aside Sentence Pursuant to 28 U.S.C. § 2255 (#1) on August 13, 2012. The government filed its Response (#4) on October 3, 2012. Fort the following reasons, Petitioner's Petition (#1) is dismissed.
On July 1, 2008, Petitioner was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) in Case No. 08-CR-20034. On April 15, 2009, Petitioner appeared before Magistrate Judge David G. Bernthal and entered a plea of guilty to the count contained in the indictment. The plea agreement contained the following relevant provisions:
"ELEMENTS OF THE CHARGE
4. The defendant has personally read the indictment and the charge to which the defendant is pleading guilty. The indictment and the charge have been explained to the defendant by the defendant's attorney. Furthermore, the defendant fully understands the nature and elements of the crime(s) to which the defendant is pleading guilty.
STATUS AS AN ARMED CAREER CRIMINAL
24. Based upon the information currently known by the parties, the defendant qualifies as an Armed Career Criminal under 18 U.S.C. § 924(e). Further, based upon the information currently known by the parties, the estimated Sentencing Guideline imprisonment range of the defendant is below the statutory, mandatory minimum fifteen year sentence (180 months) he faces as an Armed Career Criminal. Thus, the parties believe the defendant's Sentencing Guideline range will become 15 years (180 months), the statutory, mandatory minimum sentence.
WAIVER OF RIGHT TO COLLATERAL ATTACK
30. The defendant also understands that he has a right to attack his sentence collaterally on the grounds it was imposed in violation of the Constitution or laws of the United States, he received ineffective assistance from his attorney, this Court was without proper jurisdiction or the 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 his attorney have reviewed Section 2255, and the defendant understands the rights that statute gives him. The defendant's attorney has fully discussed and explained this waiver with the defendant but has made no recommendation to the defendant as to the waiver of a motion under Title 28, United States Code, Section 2255. 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.
31. Regardless of any advice his attorney has given him one way or the other, in exchange for the concessions made by the United States in this Plea Agreement, the defendant hereby knowingly and voluntarily waives his right to challenge any and all issues relating to his plea agreement, conviction and sentence, including any fine or restitution, in any collateral attack, including, but not limited to, a motion brought under Title 28, United States Code, Section 2255. The defendant acknowledges and agrees that the effect of this waiver is to completely waive any and all rights and ability to appeal or collaterally attack any issues relating to his conviction and to his sentence so long as the sentence is within the maximum provided in the statutes of conviction. (Emphasis added.)
ACKNOWLEDGMENT OF VOLUNTARINESS OF WAIVER
32. The defendant states that he has not been coerced, threatened, intimidated, or in any other way involuntarily persuaded to waive his rights to appeal or collaterally attack his sentence by his attorney or anyone else. The defendant is waiving those rights because he personally believes it is in his best interest to do so in order to obtain the benefit of the concessions made by the United States in this agreement. The defendant understands the United States is unwilling to make some of those concessions unless he is willing to waive his rights to appeal or collaterally attack his sentence ...
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