Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gallivan v. United States

United States District Court, C.D. Illinois

November 4, 2016

DENNIS P. GALLIVAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 13-20054

          ORDER AND OPINION

          James E. Shadid Chief United States District Judge.

         This matter is now before the Court on Petitioner Gallivan's § 2255 Motion to Vacate, Set Aside, or Correct Sentence. For the reasons set forth below, Petitioner's Motion [1] is Denied.

         Background

         Petitioner pled guilty in a written agreement to one count of aggravated bank robbery (Count 1) and one count of brandishing a firearm during the robbery (Count 2). As a result of the Plea Agreement, he received credit for acceptance of responsibility, a sentencing recommendation from the Government with a capped maximum, and a sentence of 12 months and 1 day on Count 1 and 84 months consecutive on Count 2. In exchange for these benefits, Gallivan waived his right to collaterally attack his sentence. 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 the prior conviction for brandishing a firearm no longer qualifies as a “crime of violence.” This Order follows.

         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

         Petitioner 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 Gallivan's collateral attack waiver bars consideration of the present motion.

         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). Gallivan does not assert any of these exceptions. In fact, Gallivan does not even mention his Plea Agreement or waviers, much less provide any argument as to ineffective assistance or involuntariness.

         Paragraph 34 of the Plea Agreement provides as follows:

The defendant also understands that he has a right to attack his sentence collaterally on the grounds it was imposed in violation of the Constitution or laws of the United States, he received ineffective assistance from his attorney, this Court was without proper jurisdiction or the 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. 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 his attorney has given him one way or the other, in exchange for the concessions made by the United States in this Plea Agreement, including an agreement to be sentenced to a specific sentence as set forth above, 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 defendant is sentenced as set forth in this Plea Agreement, excepting only those claims that relate directly to the negotiation of this waiver itself.

         Gallivan then agreed to representations regarding the voluntariness of the waivers in Paragraph 35.

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 his sentence as part of the bargain. The defendant and asks the Court to accept this waiver so he can receive the full benefit of this agreement.

         Finally, before signing, he agreed to statements in Paragraph 42 of the Plea Agreement indicating the informed and voluntary nature of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.