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Weir v. United States

United States District Court, C.D. Illinois, Springfield Division

May 3, 2017

RICKEY E. WEIR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          RICHARD MILLS, UNITED STATES DISTRICT JUDGE

         In an 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.

         On 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 appealability.

         Pending now before the Court is the Plaintiff's Amended Motion for Relief pursuant to Rule 60(b)(6).

         I. BACKGROUND

         In his 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.

         In its 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.

         On 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 response.

         The 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 from judgment.

         II. DISCUSSION

         As the 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.

         Two 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 ...


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