United States District Court, S.D. Illinois
PATTSY S. PELATE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
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.
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.
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.
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.
“[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).
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
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
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 attributed to her
for sentencing was in excess of what she actually had
possession of and that the, “log got