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Peete v. United States

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

May 2, 2018

RAMONA PEETE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES E. SHADID, CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court are the Petitioner, Ramona Peete's, pro se Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (D. 4)[1] and the Respondent, the United States of America's, Response (D. 6). For the reasons set forth below, the Petitioner's Amended § 2255 Motion is DENIED and the Court declines to issue a certificate of appealability. This matter is now terminated.

         Background

         In April 2015, the Respondent charged the Petitioner by way of indictment with: Conspiracy to Defraud the Government, in violation of 18 U.S.C. § 286 (Count I); Mail Fraud, in violation of 18 U.S.C. § 1341 (Counts II, III, and IV); and Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A (Counts V through XIV). (Cr. D. 1).[2] Pursuant to a written plea agreement, the Petitioner plead guilty to Counts I and VI in January 2016. (Cr. D. 11). The Respondent agreed to bring no additional charges and reserved the right to file a motion for downward variance from the advisory sentencing guideline range pursuant to United States Sentencing Guidelines (“USSG”) § 5K1.1. Id. at pp. 9; 11-12.

         According to the plea agreement, the Petitioner waived her right to collaterally attack her conviction and sentence. Id. at pg. 7. In total, that section of the plea agreement was as follows:

The defendant also understands that she has a right to attack her conviction and/or sentence collaterally on the grounds that it was imposed in violation of the Constitution or laws of the United States; that the Court was without proper jurisdiction; or that the conviction and/or sentence (including but not limited to, the amount of any fine or restitution imposed) were otherwise subject to collateral attack. The defendant understands such an attack is usually brought through a motion pursuant to Title 28, United States Code, Section 2255, and the defendant understands her rights under the statute. Understanding those rights, and having thoroughly discussed those rights with the defendant's attorney, and in exchange for the concessions made by the United States in this Plea Agreement, the defendant knowingly and voluntarily waives her right to challenge any and all issues relating to her plea agreement, conviction and/or sentence (including, but not limited to, the amount of any fine or restitution imposed), in any collateral attack, including, but not limited to, a motion brought under Title 28, United States Code, Section 2255. The waiver in this paragraph does not apply to a claim of ineffective assistance of counsel.

Id.

         Pursuant to U.S.S.G. § 2B1.1(a)(2), the Petitioner's conduct for Count I produced a base offense level of 6. (Cr. D. 22 at pg. 6). After various adjustments, including a 14 point enhancement for an intended loss of $1, 258, 640.00, her resulting total offense level was 23. Id. at pg. 8. For Count VI, a statutorily required two year consecutive sentence was applied pursuant to 18 U.S.C. § 1028A and U.S.S.G. § 2B1.1. Id. The Petitioner's guideline range for Count I was 46-57 months. Id. at pg. 13. The Respondent recommended a downward departure, pursuant to U.S.S.G. § 5K1.1. (See the Court's August 2, 2016 minute entry in the Petitioner's criminal case.) This Court sentenced the Petitioner to, inter alia, 37 months' imprisonment on Count I and 24 months consecutively on Count VI. (Cr. D. 24 at pg. 2).

         In March 2017, the Petitioner filed the instant Motion, amending it in July of that year. (D. 1); (D. 4). Her challenge relates exclusively to Count I. She claims her trial counsel was ineffective in failing to verify that all of her victims were veterans and failing to verify the amount of money she attempted to take. (D. 4 at pg. 4). The complete supporting factual basis for her claim against counsel is:

Counsel did not verify that all of the identities where the name of veterans nor did he verify the amount of money that I was accused of taking from the government. He did not discuss nor go over any paperwork pinpointing the veteran's names and the amount that was received by each person. He never informed me that money paid out for child support, state taxes, or federal taxes for back pay would and could be reversed for the government to get their money back.

Id.

         The Petitioner reasons that she is entitled to a reduction in her sentence for Count I because of “the unconstitutional imposition of additional time of incarceration for uncharged, unindicted, untried loss amount” which “lead [sic] to an unduly long sentence.” Id. at pg. 5. She further specifies that she is requesting “a reduced non-guideline sentence without [a] 14 point enhancement for money loss.” Id. at pg. 13. The legal authority in the Petitioner's analysis consists of a reference to Dean v. United States, 137 S.Ct. 1170 (2017). In response, the Government argues the Petitioner waived her right to collaterally attack her sentence, and her Motion should be denied. (D. 6 at pp. 7-10).

         Legal Standard

         A waiver of collateral review is generally enforceable, assuming the collateral attack falls within the scope of the waiver. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999); United States v. Chapa, 602 F.3d 865, 868 (7th Cir. 2010). Here, the Petitioner alleges ineffective assistance of counsel. (D. 4). Not all claims of ineffective assistance of counsel overcome collateral attack waivers; broad, unsupported accusations, in particular, are not allowed. Long v. United States, 847 F.3d 916, 920 (7th Cir. 2017) (citing Hurlow v. United States, 726 F.3d 958, 967 (7th Cir. 2013)). More specifically, if counsel's ineffectiveness ...


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