JOHN A. BARNES, Petitioner,
UNITED STATES of AMERICA, Respondent. Criminal No. 10-CR-30004-WDS
MEMORANDUM & ORDER
WILLIAM D. STIEHL DISTRICT JUDGE
Before the Court is petitioner’s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1), to which the government has filed a response (Doc. 13). Also before the Court are petitioner’s supplemental motion (Doc. 4), motion to amend (Doc. 7) and supplemental motion in support of his motion to amend (Doc. 8).
Petitioner pleaded guilty and was convicted of two counts of distribution of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). (No. 10-CR-30004-WDS). Petitioner executed a plea agreement and a stipulation of facts. In his plea agreement, petitioner waived his right to contest his conviction and sentence under any provision of federal law, including § 2255. (No. 10-CR-30004-WDS, Doc. 36 at 10-11).
On January 14, 2011, petitioner was sentenced to 200 months of imprisonment on each of Counts 1 and 2, to be served concurrently, 6 years of supervised release, a fine of $400.00, and a special assessment of $200.00. Petitioner did not file a direct appeal.
On October 31, 2011, in his criminal case, petitioner filed a motion for retroactive application of the sentencing guidelines to his crack cocaine offenses, based on the Fair Sentencing Act of 2010, which this Court denied, finding that the defendant was not entitled to a sentence reduction (No. 10-CR-30004-WDS, Doc. 66). Specifically, the Court determined that the defendant was sentenced at a base level of 31 with a criminal history category of VI, resulting in a guidelines range of 188-235 months, and that the amendments to the advisory guidelines would not, given his prior offense history, make him eligible for any relief under § 3582. Id.
On December 12, 2011, petitioner filed the instant motion pursuant to 28 U.S.C. § 2255 (Doc. 1), in which he asserts that counsel was ineffective in that he: (1) failed to object to the career offender sentencing enhancement which was based, in part, on an Illinois assault conviction from 1998; (2) failed to timely file a notice of appeal; and (3) failed to object to the career offender guidelines, which resulted in a sentence which amounted to cruel and unusual punishment.
In response (Doc. 13), the government argues that petitioner’s § 2255 motion should be dismissed as barred by the collateral review waiver executed as part of his plea agreement.
After the Court directed the government to respond to petitioner's initial petition, petitioner filed a supplemental motion in support of his § 2255 petition (Doc. 4), a motion to amend his § 2255 petition (Doc. 7), and a supplemental motion in support of his motion to amend (Doc. 8). The Court previously partially ruled on whether it should consider the amendments in these documents, but reserved ruling on some of the claims contained therein (Doc. 10). These amendments, and the Court’s determination as to whether it will consider the claims therein, are discussed in detail, infra.
Relief under § 2255 is “reserved for extraordinary situations.” Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993)). Section 2255 requires the court to vacate, set aside, or correct the sentence of a prisoner in custody if the Court finds 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).
A § 2255 motion “can not raise (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) nonconstitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal.” Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). Section 2255 is “neither a recapitulation of nor a substitute for a direct appeal.” Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). Thus:
[a]n issue not raised on direct appeal is barred from collateral review absent a showing of both good cause from the failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or if a refusal to consider the issue would lead to a fundamental miscarriage of justice.
Prewitt, 83 F.3d at 816 (emphasis in original).
A. Ineffective Assistance of Counsel Claims
Ineffective assistance of counsel claims, however, have been identified as generally raised and considered on collateral review, where a complete record can be developed. Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir. 2005). The petitioner bears a heavy burden to establish ineffective assistance of counsel. United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995). These claims are evaluated under the two-prong Strickland test. McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 688, 690, 694 (1984)). To succeed, the petitioner must establish that (1) counsel’s performance fell below an objective standard of reasonableness and (2) that counsel’s deficient performance prejudiced the defendant in such a way that, but for counsel’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 688, 695. The Court is not required to analyze both the performance and prejudice prong, because the failure to satisfy either prong is fatal to the claim. Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993); United States v. Slaughter, 900 F.2d 1119, 1124 (7th Cir. 1990).
B. Waiver of Appellate and Collateral Review Rights
“It is well-settled that waivers of direct and collateral review in plea agreements are generally enforceable.” Hurlow v. United States, 726 F.3d 958, 964 (7th Cir. 2013). A plea agreement is, however, a contract, and as such, “waivers contained in the agreements are unenforceable in certain circumstances akin to those in which a contract would be unenforceable, such as when the government has materially breached the agreement, or the dispute falls outside the scope of the waiver.” Id. (internal citation omitted). Furthermore, there are limited circumstances under which a knowing and voluntary waiver of direct appeal or collateral review will not be enforced: (1) when the sentence exceeds the statutory maximum, (2) when the plea or court relies on a constitutionally impermissible factor like race, or (3) when counsel is ineffective in the negotiation of the plea agreement. Dowell v. United States, 694 F.3d 898, 902 (7th Cir. 2012).
The Seventh Circuit has “repeatedly recognized that appellate and collateral review waivers cannot be invoked against claims that counsel was ineffective in the negotiation of the plea agreement.” Hurlow, 726 F.3d at 964. “[A]n attorney’s ineffectiveness with regard to the plea agreement as a whole, and not just the specific waiver provision at issue, renders the waiver unenforceable.” Id. at 965. The logic behind this principle is that any claim that the plea agreement itself was involuntary, or that it was the product of ineffective assistance of counsel, bears on the validity of the plea agreement as a whole, “and so it would knock out the waiver . . . along with the rest of the promises if successful.” Id. (internal quotation omitted). In other words, the waiver stands or falls with the plea bargain of which it is a part. Id. at 965. In essence then, “a direct or collateral review waiver does not bar a challenge regarding the validity of a plea agreement (and necessarily the waiver it contains) on grounds of ineffective assistance of counsel.” Id.
C. Supplements and Amendments to the Initial Petition
“A district court may properly deny a motion to amend as futile if the proposed amendment would be barred by the statute of limitations.” Rodriguez v. United States, 286 F.3d 972, 980 (7th Cir. 2002) (noting that amendments may also be denied, in the court’s discretion, under Rule 15 based on undue delay, bad faith, dilatory motive, or prejudice). “An amended habeas petition, . . ., does not relate back (and thereby escape “EDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005); see also, Rodriguez, 286 F.3d at 981 (the Seventh Circuit has noted (without indicating disapproval), rulings in other circuits which have determined that untimely claims which attempt to bring ...