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Thomas v. United States

United States District Court, C.D. Illinois

September 2, 2016

JACOBIE THOMAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 09-20058

          ORDER AND OPINION

          JAMES E. SHADID CHIEF UNITED STATES DISTRICT JUDGE

         This matter is now before the Court on Petitioner Thomas' § 2255 Motion to Vacate, Set Aside, or Correct Sentence. For the reasons set forth below, Petitioner's Motion [4] is Denied.

         Background

         Petitioner Thomas filed this § 2255 action seeking to vacate, set aside, or correct his sentence pursuant to Johnson v. United States, 135 S.Ct. 2251 (2015). Thomas pled guilty to one count of distributing five grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) on August 4, 2009. Because Thomas had prior convictions for a controlled substance offense and residential burglary, [1] he qualified for the Career Offender enhancement under U.S.S.G. § 4B1.1. His guideline sentencing range then became 262 - 327 months. As a result of a motion by the Government to reflect his substantial assistance, he was sentenced to 200 months' imprisonment on July 9, 2010.

         Standard of Review

         A petitioner may avail himself of § 2255 relief only if he can show that there are “flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or result in a complete miscarriage of justice.” Boyer v. United States, 55 F.2d 296, 298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268 (1995). Section 2255 is limited to correcting errors that “vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude.” Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993). A § 2255 motion is not, however, a substitute for a direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir.), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). Federal prisoners may not use § 2255 as a vehicle to circumvent decisions made by the appellate court in a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Doe, 51 F.3d at 698.

         Analysis

         The Government first argues that this motion is barred by the collateral attack waiver in Thomas' plea agreement. Thomas contends that in light of recent Supreme Court precedent in the wake of Johnson, the collateral attack waiver should not be enforced to preclude a challenge to a constitutionally illegal sentence or a fundamental miscarriage of justice.

         Appeal and collateral attack waivers contained in plea agreements are generally enforceable. Hurlow v. United States, 726 F.3d 958, 964 (7th Cir. 2013). That being said, there are a few exceptions to this general rule; plea waivers are not enforceable if they are involuntary, if the sentence exceeds the statutory maximum, if the court relied on a constitutionally impermissible factor, or if there was ineffective assistance of counsel with respect to the negotiation of the plea agreement. Id., at 964-66; United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir. 2000); Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011). Thomas does not assert either of these exceptions. Paragraph 27 of the Plea Agreement provides as follows:

The defendant also understands that he has a right to attack his conviction or sentence collaterally on the grounds that the Constitution or laws of the United States were violated, he received ineffective assistance from his attorney, this Court was without proper jurisdiction or the conviction 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 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 mayor may not have received from the defendant's attorney regarding this right.

         Paragraph 28 then adds:

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.

         Thomas agreed to representations regarding the voluntariness of the waivers in Paragraph 29.

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 ...

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