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Zweigart v. True

United States District Court, S.D. Illinois

November 9, 2017

STEVEN A. ZWEIGART, II, Petitioner,
v.
B. TRUE, Respondent.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON, UNITED STATES DISTRICT JUDGE:

         Petitioner Steven A. Zweigart, II, filed a petition for writ of habeas corpus under 28 U.S.C. §2241 (Doc. 1) challenging the enhancement of his sentence as a career offender under U.S.S.G. § 4B1.1. He purports to rely on Mathis v. United States, 136 S.Ct. 2243 (2016). Now before the Court is Respondent's Motion to Dismiss Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, Doc. 11. Petitioner responded to the motion at Doc. 13.

         Respondent argues that the petition must be dismissed because petitioner waived his right to file a collateral attack.

         Relevant Facts and Procedural History

         Petitioner pleaded guilty to one count of Conspiracy to Manufacture Methamphetamine in the Southern District of Illinois. United States v. Zweigart, Case No. 12-cr-40103-JPG. He was sentenced to 163 months imprisonment.

         Zweigart and the government entered into a written plea agreement. A copy of the agreement is attached to Doc. 11 as Exhibit 1.[1] Petitioner and the government agreed that it appeared that he would meet the career offender criteria and his offense level would therefore be 29 and that his criminal history would be Category VI. Petitioner and the government agreed that his sentencing range would be 155-188 months. Ex. 1, pp. 4-6.

         The plea agreement also contained a waiver of the right to appeal or file a collateral attack:

1. The Defendant understands that by pleading guilty, Defendant is waiving all appellate issues that might have been available if Defendant had exercised the right to trial. The Defendant is fully satisfied with the representation received from defense counsel. The Defendant acknowledges that the Government has provided complete discovery compliance in this case. The Defendant has reviewed the Government's evidence and has discussed the Government's case, possible defenses and defense witnesses with defense counsel.
2. The Defendant is aware that Title 18, Title 28, and other provisions of the United States Code afford every defendant limited rights to contest a conviction and/or sentence through appeal or collateral attack. However, in exchange for the recommendations and concessions made by the United States in this plea agreement, the Defendant knowingly and voluntarily waives his right to contest any aspect of his conviction and sentence that could be contested under Title 18 or Title 28, or under any other provision of federal law, except that if the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum, whichever is greater), the Defendant reserves the right to appeal the reasonableness of the sentence. The Defendant acknowledges that in the event such an appeal is taken, the Government reserves the right to fully and completely defend the sentence imposed, including any and all factual and legal findings supporting the sentence, even if the sentence imposed is ·more severe than that recommended by the Government.
3. Defendant's waiver of his right to appeal or bring collateral challenges shall not apply to: 1) any subsequent change in the interpretation of the law by the United States Supreme Court or the United States Court of Appeals for the Seventh Circuit that is declared retroactive by those Courts and that renders the defendant actually innocent of the charges covered herein; and 2) appeals based upon Sentencing Guideline amendments that are made retroactive by the United States Sentencing Commission (see U.S.S.G. § 1B 1.1 0). The Government reserves the right to oppose such claims for relief.

Ex. 1, pp. 7-8.

         On August 15, 2013, the Court found that the Guidelines sentencing range was 151 to 188 months and sentenced petitioner to 163 months imprisonment. Transcript of Sentencing Hearing, Doc. 11, Ex. 2.

         Petitioner filed a motion under 28 U.S.C. § 2255. He argued that his trial counsel had been ineffective in failing to object to the career offender enhancement because his Illinois domestic battery convictions were not qualifying felonies and that counsel had been ineffective in advising him to agree that he was a career offender in the plea agreement. Doc. 11, Ex. 7. On March 31, 2015, the Court denied the motion and denied a certificate of appealability. Ex. 8. However, the Seventh Circuit granted a certificate of appealability to consider whether Johnson v. United States, 135 S.Ct. 2551 (2015), decided after petitioner's ยง 2255 motion was denied, affected the validity of his sentence. Ex. 9. The ...


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