United States District Court, C.D. Illinois
ORDER AND OPINION
E. SHADID CHIEF UNITED STATES DISTRICT JUDGE
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 
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,  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.
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.
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.
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.
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.
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 ...