Sullivan v. United States of America
Filing
14
ORDER entered by Chief Judge James E. Shadid on 03/29/2016. For the reasons set forth herein, Sullivan's Motion to Vacate, Set Aside, or Correct Sentence pursuant to § 2255 1 is DENIED. This matter is now terminated. See full written Order. (JS, ilcd)
E-FILED
Tuesday, 29 March, 2016 10:35:39 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MARCUS SULLIVAN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 15-1234
ORDER
This matter is now before the Court on Petitioner, Marcus Sullivan’s (“Sullivan”), Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth
below, Sullivan’s § 2255 Motion [1] is DENIED.
BACKGROUND
Sullivan was charged by criminal complaint on July 27, 2012. On August 23, 2012, he was
indicted on a charge of conspiracy to manufacture, distribute, and possess with the intent to distribute
at least 280 grams of crack cocaine, distribution of crack cocaine, and possession with the intent to
distribute at least 28 grams of crack cocaine. Given his prior felony drug conviction, Sullivan faced
a statutory penalty of 20 years to life if convicted.
The Government then extended a proposed plea agreement to Sullivan’s counsel providing
for Sullivan to plead guilty to the conspiracy count, an agreed sentence of 17 years’ imprisonment,
the withdrawal of its notice under 21 U.S.C. § 851 (which would result in the reduction of his
mandatory minimum from 20 years to 10 years), and this dismissal of all other counts. Sullivan
accepted the plea offer pursuant to Fed.R.Crim.P. 11(c)(1)(C), on February 3, 2014, after a lengthy
plea colloquy. The document further provided the parties’ agreement that Sullivan waived his right
to direct appeal and collateral attack. Following a number of adjustments and objections at
sentencing, Sullivan had an advisory guideline range of 292 to 365 months in prison. However, he
was sentenced to the agreed term of 17 years (204 months) in accordance with the plea agreement.
Sullivan now brings this § 2255 motion in which he argues that counsel provided ineffective
assistance in nine ways, his sentence was imposed in violation of United States v. Booker, an
evidentiary hearing is required, and he is actually innocent of being in the conspiracy from 2001 to
2010. The Government has filed its response, and this Order follows.
DISCUSSION
A petitioner may avail himself of § 2255 relief only if he can show that there are “flaws in
the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or result
in a complete miscarriage of justice.” Boyer v. United States, 55 F.2d 296, 298 (7th Cir. 1995), cert.
denied, 116 S.Ct. 268 (1995). Section 2255 is limited to correcting errors that “vitiate the sentencing
court’s jurisdiction or are otherwise of constitutional magnitude.” Guinan v. United States, 6 F.3d
468, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993).
A § 2255 motion is not, however, a substitute for a direct appeal. Doe v. United States, 51
F.3d 693, 698 (7th Cir.), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States, 75 F.3d 1174,
1177 (7th Cir. 1996). Federal prisoners may not use § 2255 as a vehicle to circumvent decisions
made by the appellate court in a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982);
Doe, 51 F.3d at 698. Accordingly, a petitioner bringing a § 2255 motion is barred from raising: (1)
issues raised on direct appeal, absent some showing of new evidence or changed circumstances; (2)
nonconstitutional issues that could have been but were not raised on direct appeal; or (3)
constitutional issues that were not raised on direct appeal, absent a showing of cause for the default
and actual prejudice from the failure to appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir.
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1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717, 710-20 (7th Cir.
1994).
Sullivan would appear to be barred from bringing this § 2255 motion by virtue of the fact that
his plea agreement contains a waiver of his right to bring a collateral attack on his sentence. So long
as the plea agreement stands, the waiver of the right to appeal or pursue collateral relief must
generally be enforced. Id., citing United States v. Wagner, 103 F.3d 551 (7th Cir. 1996); Jones v.
United States, 167 F.3d 1142, 1144-45 (7th Cir. 1999) (finding that the right to appeal can survive
a waiver where the agreement itself is involuntary, the trial court relied on a constitutionally
impermissible factor, or the sentence exceeded the statutory maximum). The validity of the appeal
waiver depends on whether the waiver was “express and unambiguous” and whether the record
clearly shows that the waiver was made “knowingly and voluntarily.” United States v. Woolley, 123
F.3d 627, 632 (7th Cir. 1997)
Sullivan attempts to void the plea agreement and waivers contained therein by claiming that
he received ineffective assistance of counsel. The seminal case on ineffective assistance of counsel
is Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court stated that in order for
a prisoner to demonstrate that counsel's performance fell below the constitutional standard, the
petitioner would have to show that "counsel's representation fell below an objective standard of
reasonableness." Strickland, 466 U.S. at 687-88. A prisoner must also prove that he has been
prejudiced by his counsel's representation by showing "a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id. at 694. The
courts, however, must "indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Id. at 690.
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To satisfy Strickland’s prejudice prong in this case, Petitioner must demonstrate through
objective evidence a reasonable probability that, but for counsel’s purportedly erroneous advice, he
would not have entered the guilty plea and would have insisted upon going to trial. Woolley, 123
F.3d at 635. “It is far from obvious how a petitioner is expected to make such a showing, but it is
clear that ‘merely making such an allegation is insufficient.’” United States v. Ryan, 986 F.Supp.
509, 513 (N.D.Ill. 1997), citing Key, 806 F.2d at 139; see also McCleese v. United States, 75 F.3d
1174, 1179 (7th Cir. 1996) (requiring that the petitioner establish through objective evidence that he
would not have accepted the plea).
Here, Sullivan does not make any legitimate argument that his plea (which included waivers
of the right to bring a direct appeal and collateral attack) was not knowingly and voluntarily entered
into as a result of ineffective assistance of counsel. Specifically, he claims that counsel (1) failed
to investigate and file a motion to suppress evidence seized; (2) failed to investigate or object to
improper conduct by the prosecutor before the grand jury; (3) failed to object to the confidential
informant’s hearsay testimony to the FBI, grand jury, and at sentencing; (4) failed to investigate and
object to the drug quantity in the indictment; (5) not objecting to the PSR and all the enhancements
made within the PSR; (6) failed to investigate and object to the criminal complaint; (7) failed to
investigate or object to prosecutorial conduct due to his personal opinions of Sullivan; (8) failed to
seek a misjoinder or to sever defendants in the indictment; and (9) failed to raise any mitigating
factors at sentencing.
Only in his traverse does Sullivan allege that his plea agreement was not intelligent because
the information provided to him by the Government and his counsel was erroneous. He states that
he misunderstood the Government’s method of proving the quantity of drugs in the conspiracy, was
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told “if you don’t take this plea, then I can’t help you,” and was not given a reasonable amount of
time to decide whether to take the offer with his family.
The written plea agreement clearly stated:
11. The defendant is aware that federal law affords a defendant a
right to appeal a final decision of the district court, including the
conviction and sentence imposed. Understanding his rights to appeal,
and having thoroughly discussed these rights with his attorney, the
defendant knowingly and voluntarily waives the right to appeal any
and all issues relating to this plea agreement, his conviction, and his
sentence, so long as the sentence of imprisonment is 204 months and
the amount of any fine or restitution and term of supervised release
are within the maximum provided in the statutes of conviction. The
defendant’s waiver of the right to appeal is in exchange for the
concessions made by the United States in this plea agreement.
12. The defendant also understands that he has a right to attack the
conviction and/or sentence imposed collaterally on the grounds that
it was imposed in violation of the Constitution or laws of the United
States; that he received ineffective assistance from his attorney; that
the Court was without proper jurisdiction; or that the conviction
and/or sentence was 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. The
defendant and the defendant’s attorney have reviewed Section 2255,
and the defendant understands his rights under the statute.
Understanding those rights, and having thoroughly discussed those
rights with the defendant’s attorney, the defendant knowingly and
voluntarily waives his right to collaterally attack the conviction and/or
sentence with one exception: the defendant may raise on collateral
attack only those discrete claims which relate directly to the
negotiation of this waiver. The defendant acknowledges that the
decision to waive the right to challenge any later claim of the
ineffectiveness of the defendant’s counsel was made by the defendant
alone notwithstanding any advice the defendant may or may not have
received from the defendant’s attorney regarding this right. The
defendant’s waiver of his right to collaterally attack the conviction
and/or sentence is in exchange for the concessions made by the
United States in this plea agreement.
(Plea Agreement, at 3-4).
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By signing the plea agreement, Sullivan also accepted the factual stipulation contained in the
document.
From approximately 2001 through at least August 1, 2012,
MATTHEW G. SULLIVAN (“MATTHEW”) and others conspired
with each other to manufacture, distribute, and possess with the intent
to distribute cocaine bases, or crack cocaine. By at least in or abut
2010, the defendant, MARCUS R. SULLIVAN (“MARCUS”),
knowingly became a member of the conspiracy with the intention of
furthering the conspiracy. The conspiracy involved more than 280
grams of cocaine base (“crack cocaine”), and the amount of crack
cocaine attributable to the defendant by his conduct, and the conduct
of his co-conspirators that was reasonably foreseeable to him, was
more than 280 grams.
(Plea Agreement, at 8). The written agreement also contained the following representation by
Sullivan:
I have read this entire plea agreement carefully and have discussed it
fully with my attorney. I fully understand this agreement, and I agree
to it voluntarily and of my own free will. I am pleading guilty
because I am in fact guilty, and I agree that the facts stated in this
agreement about my criminal conduct are true. No threats, promises,
or commitments have been made to me or to anyone else, and no
agreements have been reached, expressed or implied, to influence me
to plead guilty other than those stated in this written plea agreement.
I am satisfied with the legal services provided by my attorney. I
understand that by signing below I am stating I agree with everything
stated in this paragraph, and I am accepting and entering into this plea
agreement.
(Plea Agreement, at 14-15).
A review of the transcript of the plea hearing reveals that after a detailed discussion of the
maximum sentence he could face, Sullivan received a lengthy explanation of the waiver provision
and its consequences during the plea colloquy. As set forth below, this explanation was more than
sufficient to remedy any misinformation (or lack of information) that may have been provided by
his counsel with respect to the waiver or penalty provisions, and hence, he has failed to demonstrate
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actual prejudice under Strickland. This same dialogue also demonstrates the knowing and voluntary
nature of Sullivan’s waiver and guilty plea, as well as his competency.
When the Court accepted Sullivan’s guilty plea, it held a lengthy change of plea hearing
pursuant to Rule 11 of the Federal Rules of Criminal Procedure. Rule 11 “provides protection for
those who voluntarily choose to waive their constitutional right to a trial by pleading guilty while
ensuring an adequate record to insulate the plea from appellate and collateral attacks.” Key v. United
States, 806 F.2d 133, 136 (7th Cir. 1986). Rule 11 also provides for a colloquy that “exposes the
defendant’s state of mind in the record through personal interrogation.” Id., citing United States v.
Fountain, 777 F.2d 351, 356 (7th Cir. 1985). This aspect of the Rule 11 hearing is especially
important with respect to subsequent collateral proceedings, because the representations made by
the defendant during a plea colloquy, as well as any findings made by the judge accepting the plea,
constitute a formidable barrier in any subsequent collateral proceeding. Id., citing Thompson v.
Wainwright, 787 F.2d 1447 (11th Cir. 1986); Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 1629
(1977). Furthermore, “[s]olemn declarations in open court carry a strong presumption of verity.”
Blackledge, 97 S.Ct. at 1629.
Q.
So you went to one year at a junior college?
A.
Yeah. Well, I went – I attended several universities.
Q.
Okay. Can you read and write?
A.
Yes.
Q.
Have you ever been treated for any mental illness?
A.
No.
Q.
Have you been treated for any addiction to narcotic drugs of any kind?
A.
No.
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Q.
Are you currently under the influence of any drug,
medication, or alcoholic beverage?
A.
No, sir.
Q.
Have you received a copy of the indictment, that is, the
written charges made against you?
A.
Yes, sir.
Q.
Have you had a chance to discuss those with Mr. Hanna?
A.
Yes, sir.
Q.
Have you had a chance to review the discovery in this case
and go over any possible defenses that you have with Mr.
Hanna?
A.
Yes, sir.
Q.
Are you satisfied with Mr. Hanna’s representation to this point?
A.
To a level.
Q.
To a level?
A.
I can’t – you know, I’m not going – I just feel like I will never
be fully satisfied, you know, things won’t work out the way
that I want it to so . . .
Q.
So – I understand. So you would prefer that this matter would
go away as opposed to sitting here pleading guilty?
A.
I would, but it doesn’t seem like it’s going to happen.
Q.
So did you have an opportunity to read and discuss the plea
agreement with Mr. Hanna before you signed it?
A.
Yes, sir.
Q.
Does the plea agreement represent your entire understanding
or the entire understanding that you have with the
government?
A.
Yes, sir.
-8-
Q.
Do you think that you understand the terms of the plea agreement?
A.
Yes, sir.
Q.
Has anyone made any promises or assurances to you that are
not in the plea agreement to persuade you or to get you to
plead guilty?
A.
No, sir.
Q.
Has anyone threatened you in any way to get you to plead guilty?
A.
No, sir.
Q.
All right. It’s my understanding that you are going to plead
guilty to a certain period of time. And if you – and if I accept
that then I will sentence you to that certain time. Do you
understand that?
A.
Yes, sir.
Q.
If I don’t accept that then you will have an opportunity to
withdraw your plea agreement; do you understand that?
A.
Yes, sir.
Q.
Okay. Let’s go over it then. All right. Page two, the charges
set forth in paragraph four. You’re charged in Count One,
you’re charged in Counts Two and Three. You’re charged in
Count Seven. You’re charged in Counts Eight and Eleven.
The charges are conspiracy to manufacture, distribute, and
possess with intent to distribute cocaine in Count One.
Distribution of cocaine base in Two and Three.
Distribution of cocaine base in Count Seven.
Possession with the intent to distribute cocaine base in
Counts Eight and Eleven.
Do you understand that?
A.
Yes, sir.
Q.
Now, you’re only pleading guilty to Count One; is that correct?
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A.
Yes, sir.
Q.
Count One is set forth in paragraph seven: To sustain the
charge of drug trafficking conspiracy, the government must
prove the following beyond a reasonable doubt:
First, the conspiracy charged in Count One existed.
And second, that you knowingly became a member of
the conspiracy with an intention to further the
conspiracy.
Do you understand the charges against you?
A.
Yes, sir.
Q.
Do you understand the government would have to prove the
elements of these charges as set forth in Count Seven against
you beyond a reasonable doubt?
A.
Yes, sir.
Q.
To establish the mandatory minimum sentence of ten years
and increase the statutory maximum term of imprisonment to
life, the United States would also have to prove beyond a
reasonable doubt that the conspiracy involved at least 280
grams of cocaine base.
And then moving on to page three, the amount of cocaine
base attributable to you through your conduct and the conduct
of co-conspirators that was reasonably foreseeable to you was
at least 280 grams. Do you understand that?
A.
Yes, sir.
Q.
The possible penalties are as follows:
The crime to which you are pleading guilty is set – the
possible penalties are set forth in paragraph eight.
There are – at least ten years in prison and up to life,
a fine of up to $10 million, at least five years and up
to life of supervised release, a $100 special
assessment, and the forfeiture of the items listed in the
note of forfeiture. Do you understand that?
A.
Yes, sir.
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Q.
The supervised release period that I mentioned, five years and up to
a lifetime, has its own terms and conditions. Any violation of those
terms and conditions could result in your supervised release period
being revoked and you being imprisoned for all or part of that
supervised release period without credit for time previously served.
Do you understand that?
A.
Yes, sir.
***
Q.
Paragraph 11 discusses your waiver of right to appeal.
Federal law affords you a right to appeal a final decision of
the district court, including the conviction and sentence
imposed. This paragraph on page three and the top of four
tells me that you understand these rights.
A.
Yes, sir.
Q.
That you have thoroughly discussed these rights with Mr.
Hanna; that you knowingly and voluntarily waive your right
to appeal the conviction and the sentence so long as the term
of imprisonment is 204 months as you have agreed upon.
And the knowingly and voluntary waiver of right to appeal is
made without any threats or promises to you other than
receiving the 204 months; is that correct?
A.
Yes, Your Honor.
Q.
Do you have any questions about that?
A.
No, sir.
Q.
The paragraph 12 discusses a different type of waiver of postconviction, a waiver of right to collateral attack. You have a
right to collaterally – to attack the conviction and/or sentence
collaterally on the grounds that it was imposed in violation of
the Constitution or laws of the United States; that you
received ineffective assistance of counsel; that the Court was
without proper jurisdiction; or that the conviction and/or
sentence was otherwise subject to collateral attack. Do you
understand that?
A.
Yes, sir.
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Q.
This paragraph goes on to tell me as well that you understand
this, that you have discussed this with Mr. Hanna; that you
knowingly and voluntarily waive your right to attack,
collaterally attack the sentence in order to enter into this plea
agreement with the government; is that correct?
A.
Yes, sir.
Q.
Okay. Paragraph 13 is the agreement here. This is pursuant to
11(c)(1)(C) and the parties are – both your attorney and you and Mr.
Walters are requesting that I sentence you to 204 months in prison.
Do you understand that?
A.
Yes, sir.
***
Q.
The – assuming that there was no agreement and I were to
make this determination based upon the Sentencing
Guidelines, you would have – I would have probation and
they will any way with the Presentence Report, they will
determine your guideline range based upon a combination of
advisory guidelines and other statutory sentencing factors.
Now, I’m assuming that as some point you and Mr. Hanna
talked about the guidelines and maybe haven’t gotten into the
specifics of what your guideline range might be but for this
agreement, but, if you have, Mr. Hanna, I will ask you to say
it.
Mr. Hanna.
We have, Judge. And what I indicated to Mr. Sullivan
is that absent this agreement to a specific term that is
under the mandatory minimum had their been a blind
plea in this case, he would have been subject to at
least 240 months in the Bureau of Prisons. And the
range that I gave him, if this matter were to proceed to
trial, without acceptance of responsibility was
between 262 to 327 months.
Q.
Okay. Understand that, Mr. Sullivan?
A.
Yes, sir.
Q.
Now that probably won’t apply here because of this
agreement, but I have to accept it first, and I will order a
Presentence Report to do so. But if the guideline range were
to apply, probation would determine that as part of the
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Presentence Report. You and your attorney and Mr. Walters
would have an opportunity to object to those calculations. I
would make the final determination. And then once I make
that final determination, then there would be arguments as to
the sentencing alternatives. And I have authority in some
circumstances to go upward or downward from that range. So
ultimately, I would decide the sentence and what Mr. Hanna
would give you would just be an estimate. Do you understand
that?
A.
Yes, sir.
***
Q.
All right. Factual basis from the government please.
Mr. Walters. Thank you, Your Honor. If this matter proceeded to
trial, the United States would introduce evidence
establishing, among other things, the facts set forth on
pages eight through 12 of the plea agreement.
From approximately the early 2000s until, at least,
August 1st of 2012, Matthew Sullivan, Marcus’
brother, and others conspired with each other to
manufacture, distribute, and possess with the intent to
distribute cocaine base or crack cocaine.
By at least approximately 2010, the defendant, Marcus
Sullivan – who I will refer to as Marcus as I read –
knowingly became a member with the conspiracy with
an intention to further it. The conspiracy involved
more than 280 grams of cocaine base or crack
cocaine, and the amount of crack attributable to the
defendant by his own conduct and the conduct of coconspirators reasonably foreseeable to him was more
than 280 grams.
In furtherance of the conspiracy and to accomplish its
purposes, Matthew and Marcus would regularly travel
together, individually, and with other co-conspirators
to one or more locations outside this district to obtain
multiple ounces of cocaine that they would then bring
back to the Bloomington-Normal area. Matthew and
Marcus would then convert or cause to be converted
portions of the cocaine into crack cocaine. Matthew
and Marcus would then distribute crack to co- 13 -
conspirators and customers. They also discussed with
each other the amount of cocaine they planned to
obtain from their source of supply. They coordinated
with the source of supply on behalf of each other.
Examples of the above of this conduct include the
example set forth on page 9, 10, 11 and 12.
On May 15 of 2012, Marcus distributed
approximately one ounce of crack cocaine to
Confidential Source 1. Prior to this distribution
occurring, Confidential Source 1 participated in a call
with Matthew that was recorded. During the call,
Matthew told CS 1 that he was out of state. CS 1 told
Matthew that he needed something to hold him over
until Matthew’s return. CS 1 asked Matthew if his
brother – referring to him as his “B” – was around.
Stating “you know what I’m talking about, tell him to
treat me right. I will go grab a little something,
something.” Matthew responded, “All right. I got
him. I got you, bro.”
Immediately after this call, CS 1 participated in a
recorded call with Marcus. During this call, CS 1 told
Marcus that CS 1 had talked to Matthew who told CS
1 to, quote, “fuck with,” end quote, Marcus. Marcus
responded “Oh, for sure.” CS 1 then ordered an
ounce of crack by using the term or phrase “how many
days in February” referring to 28 days which equals
28 grams. The source later met Marcus, and under the
direction of law enforcement, purchased
approximately one ounce of crack cocaine for $800.
On July 2nd, during the Title III operating of 2012, the
FBI learned through Court authorized intercepted
communications to and from target phone one, that
being target Matthew’s phone, and target phone two,
that being Marcus’ phone, and through surveillance
that Matthew traveled with codefendant William
Watts in a rental car to Rockford to meet with a
Travares Perteete, and there they obtained
approximately 17 ounces of cocaine.
At approximately 12:15 p.m. on July 2nd, Perteete sent
a text message to Matthew that read, quote, “It’s on.
Call me.” In other words, Perteete was confirming
that the planned drug deal was to occur that day.
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Just prior to this text message, Perteete had spoke
with Marcus at approximately 12:14. During the call,
Marcus explained that Matthew had to find a ride to
come and meet Perteete. Marcus further stated during
this call, quote, “My man’s just trying to see if he can
find another ride. If not, see if you man will hold
something down. If push comes to shove, see if he can
hold it down until late tonight.”
In short, Marcus was explaining that his brother,
Matthew, was trying to find a ride and was asking
Perteete to get with the supplier to see if he would
hold back the cocaine for when Matthew got there to
supply Matthew. Perteete agreed to do so.
Prior to Matthew leaving for Rockford, Marcus and
Matthew spoke by phone. During the call Matthew
verified that Marcus had provided Matthew with a
certain amount of money toward a planned drug deal.
Upon arriving in Rockford, Matthew and Watts met
with Perteete. After meeting with Perteete, Matthew
and Watts then returned to the Bloomington-Normal
area. Upon returning, Matthew sent Marcus a text
message that read, quote “BCK” or back or informing
him we are back. Marcus responded , Okay.
Upon Matthew’s and Watts’ return to the
Bloomington area, Matthews [sic], Watts, and Marcus
met at Matthew’s residence. Title III interceptions
that occurred after this trip to Rockford and prior to
the next resupply trip to Rockford confirmed that at
least a portion of the approximately 17 ounces of
cocaine was converted into crack cocaine and
distributed to customers in the Bloomington-Normal
area including Marquelle. For example, on July 3rd,
2012, Marquelle Palmer twice ordered four ounce
amounts of crack cocaine from Matthew. His orders
were respectfully, quote, “four ready,” end quote, and
then, quote, four more,” end quote. It was reasonably
foreseeable to Marcus that Matthew would take a
portion of the cocaine he obtained from Perteete and
converted that cocaine into crack and distributed it.
On July 24, Title III interceptions, surveillance, and
other investigating means revealed that Matthew,
Marcus, and Michael Percell traveled to Rockford to
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obtain cocaine from Perteete. During the morning
hours of July 24, Matthew sent a text message to
Perteete asking if Perteete had heard from his or her
supplier. Shortly thereafter, during a phone call,
Matthew stated, quote, “We fixing to head out now or
drive to Rockford.” “Moo” – that being Michael
Percell – “fixing to come with me.” Video
surveillance in the vicinity of Matthew’s residence
revealed that Matthew left in a Dodge Charger and
that Marcus and Percell left in a Dodge Durango.
Tracker information and surveillance revealed that
Matthew in the charger and Marcus and Percell in the
Durango went to an address associated with Perteete.
Title III interceptions revealed that while Matthew,
Marcus, and Percell were in Rockford, Perteete
arranged for a third party to supply quote, “seven,”
end quote, that being seven ounces of cocaine.
Surveillance observed Marcus, Percell, and Perteete
leaving the residence associated with Perteete in the
Dodge Durango. They eventually arrived in a parking
lot of a certain business in the Rockford area while the
Durango was parked in the parking lot. Perteete got
out of the Durango, got into a car that was parked near
the Durango. The car departed for a brief period of
time and then returned. Perteete got out of the car and
got back into the Durango. The Durango then
returned to the residence associated with Perteete.
Video surveillance revealed that after departing
Rockford, the Charger and Durango returned to 201
Masters Drive in Bloomington, Illinois, approximately
at 11:30 p.m., which is where Matthew resided.
Video surveillance revealed that Marcus walked to his
residence, went inside the residence for approximately
one minute, and then walked back to Matthew’s
residence. Thereafter, video surveillance revealed
Matthew, Marcus, and Percell at the passenger side of
the Dodge Charger for approximately nine minutes.
Multiple times during the investigation, law
enforcement confirmed through surveillance that
Matthew would hide cocaine in door compartments of
the charger.
Lastly, on August 1st, 2012, the FBI and other law
enforcement agencies executed multiple search
warrants in relation to the investigation of Matthew,
Marcus, and others. The search warrants included,
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but were not limited to, searches of Matthew’s [sic]
residence of Kelsey Shanahan where Marcus had
spent the prior evening of July 31, 2012. During the
execution of the search warrant at Matthew’s
residence, law enforcement seized approximately 130
grams of crack cocaine. During the execution of the
search warrant at Kelsey Shanahan’s residence, law
enforcement seized approximately 80 grams of crack
cocaine from a couch in which Marcus was sleeping
when law enforcement entered the residence.
***
Q.
Mr. Hanna, do you believe the government can
produce such evidence at trial?
MR. HANNA:
Yes, Your Honor.
BY THE COURT:
Q.
Mr. Sullivan, did you hear what Mr. Walters just told
me and did you read qhat’s recited on pages 8 through
12 under factual basis?
A.
Yes, sir.
Q.
Are those facts correct as they pertain to your case?
A.
Yes, sir.
Q.
And are they in part the basis for your plea of guilty
and willingness to enter into this plea agreement?
A.
Yes, sir.
Q.
Okay. You are pleading guilty to a felony offense. If
your plea is accepted, you will be adjudged guilty of
that offense and such adjudication may deprive you of
valuable civil rights such as the right to vote, the right
to possess any kind of firearm. Do you understand
that?
Do you have any questions at this time?
A.
No, sir.
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Q.
Do you believe that you understand the charge against
you that you are pleading guilty to?
A.
Yes, sir.
Q.
The possible penalties?
A.
Yes, sir.
Q.
The elements of that charge?
A.
Yes, sir.
Q.
Your waiver of rights of appeal?
A.
Yes, sir.
Q.
Your rights to trial?
A.
Yes, sir.
Q.
And your rights at trial?
A.
Yes, sir.
Q.
Do you have any questions at all?
A.
Not at this time.
Q.
***
With that in mind then, sir, how do you plead to
Count One, the charge of drug trafficking conspiracy
or conspiracy to manufacture, distribute, and possess
with intent to distribute cocaine base in violation of
United States Code?
THE DEFENDANT: Guilty.
THE COURT:
All right. I find that you are fully competent and
capable of entering an informed plea, that you are
aware of the nature of the charge, the consequences
of the plea, the plea of guilty is a knowing and
voluntary plea supported by an independent basis
in fact containing each of the essential elements of the
offense. The plea is accepted.
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(Change of Plea Hearing, 4 - 24).
The Court finds that nothing in the record even remotely suggests that Sullivan did not
knowingly and voluntarily enter the plea agreement, including the waiver provisions contained
therein. To the contrary, it clearly indicates that he expressly acknowledged the potential penalties
he faced and waived his rights to appeal and pursue collateral relief after extensive questioning and
explanation by the Court. Thus, the record also demonstrates that the Court provided him with a
lengthy and detailed explanation of the possible penalties and waiver provisions that was more than
adequate to supplement or correct any lack of information or misinformation that may have been
provided by counsel. Sullivan clearly and unequivocally acknowledged that the sentence ultimately
imposed could be different from any estimate given by his attorney and could even be higher. After
receiving this explanation, Sullivan proceeded to state that he was acting voluntarily and understood
everything as it had been explained to him by the Court. The fact that he now wishes he had been
able to obtain a more favorable deal does not negate the fact that he has waived the right to
collaterally challenge his conviction or sentence.
Even assuming that Sullivan had not waived his right to bring this challenge, his allegations
of ineffective assistance of counsel are frivolous and flatly contradicted by the record. The search
warrant for his apartment described the place to be searched with particularity, including a color
photograph of his front door, and was supported by a detailed affidavit establishing probable cause.
He complains about alleged comments of the prosecutor to the grand jury that are not supported by
the transcript of the grand jury proceedings, as well as a comment during sentencing that could have
had no impact on his sentence given that he pled guilty in a negotiated agreement calling for the very
sentence that he received. Sullivan complains about the statement of a witness to the grand jury and
the fact that he was not able to suppress or confront this witness. However, a defendant has no right
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to confrontation at sentencing under the Sixth Amendment. United States v. Ghiassi, 729 F.3d 690,
695 (7th Cir. 2013). Sullivan’s complaints about drug quantity and role in the offense are flatly
contradicted by the admissions that he made in the plea agreement and during the plea colloquy.
Sullivan’s attorney made all of the objections to the PSR that he claims should have been made; the
fact that the objections were ultimately unsuccessful does not establish ineffective assistance.
Objections to the criminal complaint would have been futile in light of the fact that Sullivan pled
guilty to the indictment, as would any motion to sever himself from the charged conspiracy involving
his brother and others. Given the stipulated sentence agreed to in the plea agreement, the arguments
in mitigation Sullivan faults his counsel for not offering would also have been unavailing.
Sullivan’s other claims, that his sentence was imposed in violation of the Constitution
because certain enhancements to his sentence were not proven to a jury and that he is actually
innocent of the conspiracy because he was only involved as a buyer/seller, are not based on new
evidence or matters outside the record. They therefore could have been presented on direct appeal
but were not and are waived. Barker v. United States, 7 F.3d 629, 632 (7th Cir. 1993). His claims
are also frivolous, as he ignores the factual basis for the plea, which he acknowledged and admitted
both orally and in writing. Sullivan is not entitled to relief on his § 2255 motion for this additional
reason.
CERTIFICATE OF APPEALABILITY
To obtain a certificate of appealability, a petitioner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C § 2253(c)(2). The petitioner must also show that “jurists
of reason would find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude
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either that the district court erred in dismissing the petition or that the petitioner should be allowed
to proceed further.” Id.
Here, no reasonable jurist could conclude that Sullivan’s claim was not flatly contradicted
by the record in this case, as well as the established law of this Circuit. Accordingly, this Court will
not issue him a certificate of appealability.
CONCLUSION
For the reasons set forth herein, Sullivan’s Motion to Vacate, Set Aside, or Correct Sentence
pursuant to § 2255 [1] is DENIED. This matter is now terminated.
ENTERED this 29th day of March, 2016.
s/ James E. Shadid
James E. Shadid
United States District Judge
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