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Nelson v. United States

United States District Court, C.D. Illinois

December 6, 2016

RICKY L. NELSON, Petitioner,


          James E. Shadid Chief United States District Judge

         This matter is now before the Court on Petitioner, Ricky Nelson's (“Nelson”), Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 and the Government's Response. For the reasons set forth below, the § 2255 Motion [1] is DISMISSED.


         On June 4, 2014, Nelson entered a guilty plea to charges of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 846, and 841(a)(1) in the United States District Court for the Central District of Illinois. On November 14, 2014, he was sentenced to 144 months' imprisonment followed by a term of supervised release. Contrary to the direct appeal waiver that he agreed to as part of his plea agreement, Nelson filed a notice of appeal, which was voluntarily dismissed on April 29, 2015.

         Although he also waived his right to appeal and pursue collateral relief pursuant to § 2255 in ¶¶ 10 and 11 of the Plea Agreement, Nelson has now filed the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. In his Motion, Nelson attempts to collaterally attack his conviction based on allegations that his counsel provided ineffective assistance by coercing him to plead guilty to a crime that he didn't commit. This Order follows.


         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.3d 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 (7thCir.), cert. denied, 116 S.Ct. 205 (1995).

         Here, Nelson would appear to be barred from bringing this § 2255 motion by virtue of the fact that his Plea Agreement contains a waiver of his right to bring a collateral attack on his sentence. He asks the Court to vacate his conviction in order to allow him to proceed with his claim of actual innocence. So long as the Plea Agreement stands, however, the waiver of the right to appeal or pursue collateral relief must generally be enforced. Id., citing United States v. Wagner, 103 F.3d 551 (7th Cir. 1996); Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1999); United States v. Nelson, 124 F.3d 206, 1997 WL 374712, at *1 (7th Cir. July 1, 1997); United States v. Blinn, 490 F.3d 586, 588 (7th Cir. 2007).

         This circuit has recognized that the right to pursue a collateral attack pursuant to § 2255 survives “with respect to those discrete claims which relate directly to the negotiation of the waiver.” Jones, 167 F.3d at 1144-45. Nelson does not contend that he received ineffective assistance of counsel specifically in connection with the negotiation of the waiver or that the waiver was not knowingly and intelligently made. To the contrary, he signed the Plea Agreement containing the waivers and affirmed that his acceptance of the waivers was made knowingly and voluntarily in order to receive the benefits under the agreement. He does argue that misinformation provided by counsel rendered his entry into the plea agreement involuntary and unknowing.

         The seminal case on ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court stated that in order for a prisoner to demonstrate that counsel's performance fell below the constitutional standard, the petitioner would have to show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. A prisoner must also prove that he has been prejudiced by his counsel's representation by showing "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The courts, however, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 690.

         To satisfy Strickland's prejudice prong in this case, Petitioner must demonstrate through objective evidence a reasonable probability that, but for counsel's purportedly erroneous advice, he would not have entered the guilty plea and would have insisted upon going to trial. United States v. Woolley, 123 F.3d 627, 635 (7th Cir. 1997). “It is far from obvious how a petitioner is expected to make such a showing, but it is clear that ‘merely making such an allegation is insufficient.'” United States v. Ryan, 986 F.Supp. 509, 513 (N.D.Ill. 1997), citing Key, 806 F.2d at 139; see also McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996) (requiring that the petitioner establish through objective evidence that he would not have accepted the plea).

         Here, there are no factual assertions to the effect that Nelson's attorney rendered ineffective assistance in negotiating the waivers in his Plea Agreement. He does argue that but for the purportedly misleading advice of counsel, he would have rejected the Plea Agreement and insisted on proceeding to trial without the Agreement. Contrary to these recent assertions, the record before the Court unequivocally demonstrates that Nelson acted knowingly and freely in entering into the Plea Agreement, including the waiver provisions. Had he truly not wished to enter into the Agreement, not understood the proceedings in which he participated, or been caught unaware by the provisions, it would seem only reasonable that he would have made some attempt to correct the factual record or bring his plight to the attention of the Court at sentencing.

         A review of the transcript of the plea hearing reveals that, after a detailed discussion of the maximum sentence he could face depending on the nature of the loss, Nelson received a lengthy explanation of the waiver provision and its consequences during the plea colloquy. As set forth below, this explanation was more than sufficient to remedy any misinformation (or lack of information) that may have been provided by his counsel with respect to the waiver or penalty provisions, and hence, he has failed to demonstrate actual prejudice under Strickland. This same dialogue also demonstrates the knowing and voluntary nature of Nelson's guilty plea, as well as his competency.

         When the Court accepted Nelson's guilty plea, it held a lengthy change of plea hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure. Rule 11 “provides protection for those who voluntarily choose to waive their constitutional right to a trial by pleading guilty while ensuring an adequate record to insulate the plea from appellate and collateral attacks.” Key v. United States, 806 F.2d 133, 136 (7th Cir. 1986). Rule 11 also provides for a colloquy that “exposes the defendant's state of mind in the record through personal interrogation.” Id., citing United States v. Fountain, 777 F.2d 351, 356 (7th Cir. 1985). This aspect of the Rule 11 hearing is especially important with respect to subsequent collateral proceedings, because the representations made by the defendant during a plea colloquy, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceeding. Id., citing Thompson v. Wainwright, 787 F.2d 1447 (11th Cir. 1986); Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 1629 (1977). Furthermore, “[s]olemn declarations in open court carry a strong presumption of verity.” Blackledge, 97 S.Ct. at 1629.

         After a careful review of the transcript of Petitioner's Rule 11 hearing, the Court finds that he has failed to overcome the strong presumption of verity which attached to the statements of voluntariness and understanding that he made during that hearing. The pertinent portion of the record reveals the following colloquy between Nelson and the Court after he was placed under oath:

Q. How far did you go in school?
A. GED plus college.
Q. Can you read and write?
A. Yes.
Q. Have you been treated recently for any mental illness?
A. No, sir.
* * *
Q. Are you currently on any medications?
A. Just allergy medication.
Q. Are you taking the prescribed dosage?
A. Yes.
Q. Are you currently under the influence of any drug, medication or alcoholic beverage?
A. No, sir.
Q. Have you received a copy of the indictment, that would be the charges pending against you?
A. Yes, sir.
Q. And discussed those with Mr. ...

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