United States District Court, C.D. Illinois, Springfield Division
RICHARD MILLS, U.S. District Judge.
before the Court is the Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody. As directed, the Government filed a Response to the
Petitioner's Motion. The Petitioner has also filed a
Reply. The Court finds that an evidentiary hearing is not
2012, Petitioner Timmie Hatchett was charged in by indictment
with possession of cocaine with the intent to distribute
(Count One) and possession of a firearm in furtherance of a
drug trafficking crime (Count Two). See United States v.
Timmie Hatchett, Case No. 12-30082. On January 7, 2013,
the Petitioner pled guilty to both charges.
25, 2013, the Petitioner was sentenced to a total term of 81
months imprisonment, followed by five years of supervised
release. The imprisonment term consisted of 21 months on
Count One followed by 60 months on Count Two, to run
consecutively. Pursuant to a retroactive sentencing guideline
amendment, the Petitioner's sentence was later reduced to
78 months imprisonment [Doc. No. 34], consisting of 18 months
on Count One followed by 60 months on Count Two.
Petitioner did not file a direct appeal following his
sentencing. His motion under § 2255 is timely.
Petitioner's motion lists the following grounds: (1)
ineffective assistance of counsel/due process violation
because the Court erroneously calculated his criminal history
by giving excessive weight to a traffic violation and
suspension; (2) ineffective assistance of counsel because
counsel did not effectively represent the Petitioner; and (3)
ineffective assistance of counsel for failure to file a
Petitioner's plea agreement includes a waiver of his
right to appeal and collaterally attack his sentence. An
appellate waiver is generally enforceable. See United
States v. Hurlow, 726 F.3d 958, 964 (7th Cir. 2013).
Plea agreement waivers are governed by ordinary contract law
principles and are unenforceable in certain circumstances,
such as if the Government breaches the agreement or the
dispute falls outside the agreement. See id.
Moreover, the plea agreement is unenforceable if counsel was
ineffective in negotiating the agreement as a whole. See
id. at 965. Therefore, a petitioner need not
specifically allege that counsel was ineffective in
negotiating the waiver provision. See id.
reviewing the record, the Court concludes that Petitioner has
not provided any basis for the Court to find that the
collateral attack waiver should not apply in this case. The
Petitioner's arguments relate to sentencing issues that
are not addressed in the plea agreement. Accordingly, the
Court concludes that the waiver should be enforced and the
motion under § 2255 will be dismissed on that basis.
the grounds asserted by the Petitioner relates in some way to
his argument that counsel was ineffective for failing to
address a sentencing issue-an error in calculating his
criminal history or failing to argue that his criminal
history category overstates his actual criminal history and
his failure to file a notice of appeal as to those grounds.
Court further finds that, even if the waiver was not
enforceable, the Petitioner would not be entitled to habeas
relief. The Petitioner argues that his two prior convictions
for driving while his license was revoked should not have
counted for criminal history points. One point was added for
each conviction. However, one point for each conviction was
appropriate under United States Sentencing Guidelines
§§ 4A1.1(c) and 4A1.2(c)(1) because convictions for
driving with a revoked license which occurred within 10 years
of the instant offense are counted. Accordingly, there was no
error in calculating the Petitioner's criminal history
points. Counsel's failure to argue that there was error
does not constitute ineffective assistance of counsel.
Petitioner's assertion that counsel was ineffective for
failing to raise an argument about the Petitioner's
relatively minor criminal history is simply incorrect. The
Court has listened to a recording of the sentencing hearing
and one of the mitigating factors raised by counsel is that
the Petitioner's Criminal History Category of III
over-represented his actual criminal history-due to multiple
driving on revoked license convictions. The Court agreed with
counsel's argument and noted that particular mitigating
factor at sentencing and listed it in the Judgment [Doc. No.
30] as a basis for the below-guideline sentence.
even assuming the collateral waiver is not enforceable, the
Court notes that counsel was quite effective in representing
the Petitioner. Counsel raised a number of mitigating
factors. These included the Petitioner's relatively minor
criminal history and the harshness of the five-year mandatory
term on Count Two. Counsel argued that a below-guideline
sentence was appropriate for those and other reasons. The
Court agreed with counsel's argument that such a sentence
was warranted based on the Petitioner's circumstances.
Although he may have desired an even lower sentence, the
Petitioner is unable to show that counsel's performance
“fell below ...