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 Turntine's
§ 2255 Motion to Vacate, Set Aside, or Correct Sentence.
For the reasons set forth below, Petitioner's Motion 
pled guilty in a written agreement to one count of Hobbs Act
robbery (Count 1) and one count of brandishing a firearm
during the robbery (Count 2). In exchange for the benefits
offered by the plea agreement, Turntine waived his right to
appeal and collaterally attack his sentence. On March 6,
2014, Petitioner was sentenced to 24 months' imprisonment
on Count 1 and a consecutive term of 84 months on Count 2. He
now brings this § 2255 action seeking to vacate, set
aside, or correct his sentence pursuant to Johnson v.
United States, 135 S.Ct. 2251 (2015), arguing that his
Hobbs Act robbery conviction no longer qualifies as a
“crime of violence, ” and that, as a result, his
conviction for brandishing a firearm during the robbery
cannot stand. This Order follows.
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.
claims in his § 2255 Motion that his sentence is invalid
because the Court found that he was eligible for a
consecutive, mandatory sentence based on a finding that he
had committed a crime of violence under 18 U.S.C. §
924(c). Initially, the Court must address whether
Turntine's collateral attack waiver bars consideration of
the present motion.
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). Turntine does
not assert any of these exceptions. In fact, he does not even
mention his Plea Agreement or waivers, much less provide any
argument as to ineffective assistance or involuntariness.
10 of the Plea Agreement provides as follows:
The defendant also understands that he has a right to attack
the conviction and/or sentence collaterally on the grounds it
was imposed in violation of the Constitution or laws of the
United States; that he received ineffective assistance from
his attorney; that the Court was without proper jurisdiction;
or that the conviction and/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 the
defendant's attorney have reviewed Section 2255, and the
defendant understands his rights under the statute.
Understanding those rights, and having thoroughly discussed
those rights with the defendant's attorney, the defendant
knowingly and voluntarily waives his right to collaterally
attack the conviction and/or sentence. The defendant's
attorney has fully discussed and explained the
defendant's right to attack the conviction and/or
sentence collaterally with the defendant. 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. Regardless of any advice the defendant's attorney
may have given the defendant, in exchange for the concessions
made by the United States in this plea agreement, the
defendant hereby knowingly and voluntarily waives his right
to collaterally attack the conviction and/or sentence. The
rights waived by the defendant include his right to challenge
the amount of any fine or restitution, in any collateral
attack, including, but not limited to, a motion brought under
Title 28, United States Code, Section 2255.
also agreed to statements in Paragraph 28 of the Plea
Agreement indicating the informed and voluntary nature of the
entire plea, including the waiver provisions.
I have read this entire Plea Agreement carefully and have
discussed it fully with my attorney. I fully understand this
Agreement, and I agree to it voluntarily and of my own free
will. I am pleading guilty because I am in fact guilty, and I
agree that the facts stated in this Agreement about my
criminal conduct are true. No threats, promises, or
commitments have been made to me or to anyone else, and no
agreements have been reached, express or implied, to
influence me to plead guilty other than those stated in this
written Plea Agreement. I am satisfied with the legal
services provided by my attorney. I ...