United States District Court, C.D. Illinois
RICKY L. NELSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
E. Shadid Chief United States District Judge
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  is DISMISSED.
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.
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
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.
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).
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.
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.
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).
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.
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.
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.
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?
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?
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. ...