United States District Court, C.D. Illinois, Springfield Division
RICKEY E. WEIR, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RICHARD MILLS, UNITED STATES DISTRICT JUDGE
Order entered on July 26, 2013, the Court dismissed
Petitioner Rickey E. Weir's Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence and declined
to issue a certificate of appealability.
February 26, 2014, the United States Court of Appeals for the
Seventh Circuit found no substantial showing of the denial of
a constitutional right and denied a certificate of
now before the Court is the Plaintiff's Amended Motion
for Relief pursuant to Rule 60(b)(6).
initial § 2255 motion, the Petitioner argued that trial
counsel allegedly misled Weir to believe that a direct appeal
had been timely filed. Weir further alleged that counsel was
ineffective for 1) failing to adequately research the case in
preparation for trial; 2) failing to move to withdraw the
Petitioner's guilty plea; and 3) failing to properly
argue mitigating factors at sentencing.
Order dismissing the case, the Court found the
Petitioner's motion was “barred by Weir's
waiver of his collateral rights.” The Seventh Circuit
denied a certificate of appealability.
September 2, 2016, the Petitioner filed a Motion for Relief
pursuant to Rule 60(b)(6). On September 22, 2016, Weir filed
an amended motion. On October 11, 2016, the Government filed
its response. On October 25, 2016, Weir filed a reply and, on
October 28, 2016, the Government filed a supplement to its
Court notes that the inmate locator feature on the Bureau of
Prisons website shows that Petitioner Rickey E. Weir was
released on October 27, 2016, the day after briefing on this
motion was complete. Because he is under supervised release,
which is classified as a form of custody, § 2255 would
be available to the Petitioner. See Clarke v. United
States, 703 F.3d 1098, 1101 (7th Cir. 2013).
Accordingly, the Court will consider the motion for relief
Court noted in dismissing the § 2255 motion, the
Petitioner's plea agreement contained a standard Waiver
of Right to Collateral Attack. Relying on Mason v. United
States, 211 F.3d 1065 (7th Cir. 2000), the Court stated
the “only two exceptions to the enforceability of a
collateral attack waiver [are] (1) if it was involuntary, or
(2) if there is a claim of ineffective assistance of counsel
in connection with the negotiation of the waiver.” Doc.
No. 6 at 13. The Court further stated, “Any claim must
tie directly to the negotiation of the collateral attack
waiver, not merely to the plea agreement generally, or to the
decision to plead guilty. See Jones v. United
States, 167 F.3d 1142, 1145 (7th Cir. 1999)” and
that “Weir has not alleged that counsel was ineffective
in negotiating the waiver of collateral attack rights.”
Doc. No. 6 at 12-13. The Court ultimately found that the
“action is barred by Weir's waiver of his
collateral rights.” Doc. No. 6 at 13.
months after this Court entered an Order of Dismissal, the
Seventh Circuit stated:
we have never held that the waiver is unenforceable only when
counsel is ineffective in negotiating the specific waiver
provision. Instead, our cases since Jones have
affirmed that an attorney's ineffectiveness with regard
to the plea agreement as a whole, and not just the specific
waiver provision at issue, renders the waiver unenforceable.
Hurlow v. United States, 726 F.3d 958, 965 (7th Cir.
2013) (emphasis added). In Hurlow, “The
district court reasoned that the waiver in the plea agreement
barred Hurlow's motion because Hurlow had not alleged
that his counsel was ineffective with regard to negotiation
of the waiver and his statements at his plea colloquy
indicated that his plea was ...