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Lovell v. True

United States District Court, S.D. Illinois

December 28, 2017

B. TRUE, Warden, Respondent.



         Petitioner Michael Lovell 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, Doc. 12. Petitioner responded to the motion at Doc. 14.

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

         Relevant Facts and Procedural History

         Pursuant to a written plea agreement, Lovell pleaded guilty to conspiracy to manufacture a mixture or substance containing methamphetamine, possession of methamphetamine-manufacturing materials, and unlawful possession of ammunition by a felon in the Southern District of Illinois. United States v. Lovell, No. 12-cr-40108-JPG. The agreement provided that it appeared that Lovell would meet the career offender criteria, but he reserved the right to argue that he would not. Plea Agreement, Doc. 12, Ex. 1, ¶ 4.[1] The agreement also recited that it appeared that the sentencing range would be 151 to 188 months, but the parties recognized that the court would ultimately calculate the range after reviewing the presentence report. ¶ 3.

         The plea agreement 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. § 1B1.10). The Government reserves the right to oppose such claims for relief.

Ex. 1, pp. 8-9.

         Lovell filed objections to the presentence report. He objected to being classified as a career offender, arguing that his conviction for attempted escape was not a crime of violence and his conviction for possession of a methamphetamine manufacturing chemical was not a controlled substance offense. No. 12-cr-40108-JPG, Doc. 32. At the sentencing hearing in October 2013, the court overruled the objections, found that petitioner qualified as a career offender, and calculated the sentencing range as 151 to 188 months. Petitioner was sentenced at the low end of the Guidelines range, to 151 months on count 1 and 120 months on counts 2 and 3, to be served concurrently. No. 12-cr-40108-JPG, Doc. 35.

         In May 2016, petitioner filed a motion under 28 U.S.C. § 2255 in the Southern District of Illinois challenging his classification as a career offender under “the Johnson case.” No. 16-589-JPG. The Federal Public Defender was appointed to represent him. Through counsel, petitioner filed a ...

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