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Pelate v. United States

United States District Court, S.D. Illinois

September 12, 2016

PATTSY S. PELATE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE

         This matter comes before the Court on petitioner Pattsy S. Pelate's Motion (Doc. 1) to Vacate, Set Aside or Correct her sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies petitioner's motion.

         1. Background.

         On October 24, 2013, petitioner entered a guilty plea to one count of conspiracy to manufacture methamphetamine pursuant to a plea agreement. USA v. Pelate, 13-cr-40066, Docs. 49 & 52. She was sentenced on February 13, 2014, to the Bureau of Prisons for a term of 84 months, supervised release for a term of four years, and a fine of $20.00. Id. at Doc. 69.

         2. Analysis.

         The Court must grant a § 2255 motion when a defendant's “sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However, “[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations.” Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). “Relief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice.” Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if “the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). An evidentiary hearing was not conducted as the record demonstrated that the petitioner is not entitled to relief.

         A defendant may waive her right to collaterally attack her sentence under § 2255 and the Court notes that the petitioner's plea agreement contains such a waiver. Jones v. U.S., 167 F.3d 1142, 1144-45 (7th Cir. 1999). The Court will uphold and enforce a collateral attack waiver unless the plea agreement was involuntary, the sentence exceeded the statutory maximum sentence, or the defendant received ineffective assistance of counsel in connection with negotiating the plea agreement. Id.; see Keller v. U.S., 657 F.3d 675, 681 (7th Cir. 2011).

         Further, “[t]o bar collateral review, the plea agreement must clearly state that the defendant waives his right to collaterally attack his conviction or sentence in addition to waiving his right to a direct appeal.” Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011)(italic in original).

         Petitioner's plea agreement contains the following provisions:

2. The Defendant is aware that Title 18, Title 28, and other provisions of the United States Code afford every defendant limited rights to contest a conviction and/or sentence through appeal or collateral attack. However, in exchange for the recommendations and concessions made by the United States in this plea agreement, the Defendant knowingly and voluntarily waives his right to contest any aspect of his conviction and sentence that could be contested under Title 18 or Title 28, or under any other provision of federal law, except that if the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum, whichever is greater), the Defendant reserves the right to appeal the reasonableness of the sentence. The Defendant acknowledges that in the event such an appeal is taken, the Government reserves the right to fully and completely defend the sentence imposed, including any and all factual and legal findings supporting the sentence, even if the sentence imposed is more severe than that recommended by the Government.
3. Defendant's waiver of his right to appeal or bring collateral challenges shall not apply to: 1) any subsequent change in the interpretation of the law by the United States Supreme Court or the United States Court of Appeals for the Seventh Circuit that is declared retroactive by those Courts and that renders the defendant actually innocent of the charges covered herein; and 2) appeals based upon Sentencing Guideline amendments that are made retroactive by the United States Sentencing Commission (see U.S. S. G. § 1 B 1.10). The Government reserves the right to oppose such claims for relief.

USA v. Pelate, 13-cr-40066, Doc. 53, paragraphs 2 & 3.

         Petitioner's plea agreement indicates that she waived her collateral attack rights in addition to waiving her right to a direct appeal. Further, the petitioner does not allege that her sentence was imposed in excess of the Sentencing Guidelines or that there has been any subsequent change in the law.[1]

         Petitioner alleges three grounds for her § 2255 motion. First, she alleges that she is entitled to Rule 35 reduction. Second, she alleges that the amount of pseudoephedrine[2] attributed to her for sentencing was in excess of what she actually had possession of and that the, “log got ...


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