Bond v. USA
Filing
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OPINION dismissing 1 and 18 Motions to Vacate, Set Aside or Correct Sentence (2255) entered by Chief Judge Michael P. McCuskey on 12/16/11. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. This case is terminated. See written Opinion. (Copy mailed to Walter L Bond #04698-025, FCI Sandstone, PO Box 1000, Sandstone, MN 55072.) (KM, ilcd)
E-FILED
Friday, 16 December, 2011 04:34:54 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
WALTER L. BOND,
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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
Case No. 11-CV-2062
OPINION
Petitioner, Walter L. Bond, filed a pro se Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (#1) on February 25, 2011.1 On September 26, 2011,
Petitioner filed an Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28
U.S.C. § 2255 (#18). On October 27, 2011, the government filed its Response (#19) to the
Petitioner’s Amended Motion. On November 14, 2011, the Petitioner filed a Reply (#21) to
the government’s Response. For the following reasons the Petitioner’s Motion to Vacate, Set
Aside, or Correct Sentence (#1) is DISMISSED.
BACKGROUND
I. PLEA AGREEMENT
On December 4, 2007, Petitioner was charged by indictment with one count of
distributing cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C) in Case Number 07-
1
According to the prison mailbox rule, Petitioner’s Motion was filed on February 25,
2011, instead of the date it was electronically filed on February 28, 2011. Houston v. Lack,
487 U.S. 266, 270 (1988); see also Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999)
(extending the prison mailbox rule to prisoners filing pro se habeas corpus petitioners).
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CR-20113 in this court. On January 25, 2008, Petitioner pled guilty to the charged offense,
pursuant to a written plea agreement. Prior to making the decision to enter into the plea
agreement, Petitioner asked John Taylor (“Taylor”), his appointed counsel, to argue that his
prior aggravated battery conviction was not a qualifying crime of violence for purposes of his
possible status as a career offender. Taylor agreed to consider this request and argue against
career offender status at the sentencing hearing. As part of the written plea agreement,
Petitioner waived his right to collaterally attack his sentence in exchange for the opportunity
to cooperate with the United States and possibly receive a recommendation for a reduced
sentence. Specifically, the waiver in the plea agreement provided as follows:
The defendant also understands that he has a right to attack his conviction or sentence
collaterally on the grounds that the Constitution or laws of the Unites States were
violated, he received ineffective assistance from his attorney, this Court was without
proper jurisdiction or the conviction 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 his
attorney have reviewed Section 2255, and the defendant understands the rights that
statute gives him. The defendant’s attorney has fully discussed and explained this
waiver with the defendant but has made no recommendation to the defendant as to the
waiver of a motion under Title 28, United States Code, Section 2255. The defendant
specifically 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.
Regardless of any advice his attorney has given him one way or the other, in exchange
for the concessions made by the United States in this Plea Agreement, specifically
including the opportunity to cooperate with the United States and possibly provide
sufficient substantial assistance to induce a motion for a downward departure as set
forth above, the defendant hereby knowingly and voluntarily waives his right to
challenge any and all issues relating to his plea agreement, conviction and sentence,
including any fine or restitution, in any collateral attack, including, but not limited to,
a motion brought under Title 28, United States Code, Section 2255. The defendant
acknowledges and agrees that the effect of this waiver is to completely waive any and
all rights and ability to appeal or collaterally attack any issues relating to his
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conviction and to his sentence so long as the sentence is within the maximum
provided in the statutes of conviction.
Plea Agreement ¶29-30. At Petitioner’s change of plea hearing on January 25, 2008,
Petitioner, under oath and in open court, stated that his guilty plea, including the waiver of
appeal and collateral attack, was knowingly and voluntarily made. Additionally, Petitioner
acknowledged that the decision to plead guilty to the charged offense and enter into the plea
agreement was not contingent on any promises not contained in the written plea agreement.
II. SENTENCING
Petitioner’s sentencing hearing was held on April 21, 2008. Petitioner was subject to
a statutory maximum sentence of 30 years imprisonment for his offense, because he had a
prior felony drug conviction. Petitioner’s Presentence Report (“PSR”) classified Petitioner as
a career offender based on his prior felony convictions for aggravated battery and possession
of cocaine with the intent to distribute. Classified as a career offender, Petitioner faced an
advisory sentencing guideline range of 188 to 235 months of imprisonment. At the
sentencing hearing, this court conducted a thorough colloquy with Taylor, as well as
Petitioner himself, ensuring that there were no objections to the PSR that classified Petitioner
as a career offender. Taylor and Petitioner both affirmatively acknowledged to this court that
they did not have any objections to any aspect of the PSR, including Petitioner’s
classification as a career offender.
The United States recommended a sentence of 188 months imprisonment, which was
at the bottom of the advisory guidelines range, based on Petitioner’s cooperation up to that
point. Taylor also requested that this court impose a sentence at the bottom of the advisory
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guidelines range, arguing that Petitioner’s classification as a career offender over-represented
his criminal history because the prior aggravated battery conviction was based solely on a
“smack in the head in a public place.” This court imposed a sentence of 188 months based
on the recommendation of the United States.2 This court entered its written judgment in
Petitioner’s case on April 23, 2008. Petitioner’s conviction became final on May 7, 2008,
because Petitioner did not pursue a direct appeal within the time allowed. Thereafter, on
September 5, 2008, Petitioner received additional benefit for his cooperation under the plea
agreement. Specifically, the United States moved this court, pursuant to Rule 35 of the
Federal Rules of Criminal Procedure, to reduce the Petitioner’s sentence based on his
substantial assistance. This court granted the motion, reducing Petitioner’s sentence to 140
months of imprisonment.
III. PETITIONER’S MOTION TO CORRECT SENTENCE
On February 25, 2011, Petitioner filed a pro se Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1). After considering the initial filings by
the parties in this case, on July 22, 2011, this court entered an Order (#10) appointing
Petitioner counsel. Petitioner, with assistance of counsel, was granted leave to file an
Amended Motion under § 2255 which addressed the timeliness and waiver issues present in
this case. Appointed counsel, in preparing for filing the Amended Motion, obtained the
following affidavit from Taylor, which was ready for Taylor’s signature:
2
Petitioner also received an additional consecutive sentence of 24 months
imprisonment for a violation of supervised release. Petitioner has not challenged this
sentence, therefore, this violation and resulting consecutive sentence will not be further
addressed.
4
Walter Bond requested that I argue at a sentencing hearing, as part of the negotiated
plea process, that the Macon County Aggravated Battery conviction was not a
qualifying crime of violence. I advised that I would consider this request and make
the best argument for him that I could at sentencing.
...
When the Presentence Report included the 1995 Aggravated Battery . . . as a
qualifying crime of violence for Career Criminal Offender status, I did not object,
despite Walter Bond’s prior request that I object. I did not object on the basis of
strategy, believ[ing] that the government would make more favorable sentencing
recommendations at the sentencing hearing or at a later hearing that would be held
pursuant to Rule 35 of the Federal Rules of Criminal Procedure.
...
That I did not consider the potential impact of United States v. Begay, 553 U.S. 137
(2008) (which was decided one week before Walter Bond’s sentencing hearing) on
Walter Bond’s case, and though I could have argued that the reasoning behind the
Begay holding would apply to Walter Bond’s prior Aggravated Battery conviction to
make it a non-qualifying conviction for Career Criminal Offender classification
purposes. I did not make this argument at Walter Bond’s sentencing hearing on April
21, 2008, nor at the Rule 35 sentencing hearing on September 5, 2008.
Unfortunately, Petitioner and his appointed counsel were unable to agree on the appropriate
strategy with regards to Petitioner’s Motion, therefore the appointment of counsel was
vacated, and this affidavit was never signed by Taylor.3 On September 26, 2011, Petitioner
filed an Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §
2255 (#18), which addressed the issues of timeliness and waiver. On October 27, 2011, the
government filed its Response (#19) to the Petitioner’s Amended Motion. On November 14,
2011, the Petitioner filed a Reply (#21) to the government’s Response.
3
Despite the failure of Petitioner to have this affidavit signed by Taylor, this court,
presuming that it was initially prepared by Taylor and is a true and accurate description of
events, will construe its contents as evidence for purposes of this Motion.
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ANALYSIS
Before this court can reach the merits of Petitioner’s appeal, this court must determine
whether to dismiss Petitioner’s appeal because he entered into a plea agreement which
contained a waiver of the right to file a motion under 28 U.S.C. § 2255. A waiver of a right
to file a motion under 28 U.S.C. § 2255 is generally enforceable. See, e.g., Mason v. United
States, 211 F.3d 1065, 1069 (7th Cir. 2000); Jones v. United States, 167 F.3d 1142, 1145 (7th
Cir. 1999). There are only a few narrow exceptions to the rule that such waivers are
enforceable—specifically, a waiver will not be enforceable if: (1) it was not entered into
knowingly and voluntarily; (2) the trial court relied on a constitutionally impermissible factor
in sentencing (such as race); (3) the sentence exceeded the statutory maximum; or (4) the
petitioner is able to demonstrate ineffective assistance of counsel in connection with
negotiating the agreement itself. Jones, 167 F.3d at 1144–45; Mason, 211 F.3d at 1069.
There is no dispute in this case that: (1) the trial court did not rely on a constitutionally
impermissible factor; and (2) that Petitioner’s sentence of 188 months did not exceed the
statutory maximum of 30 years for his offense. Additionally, there is no dispute that
Petitioner entered into the plea agreement knowingly and voluntarily. At the change of plea
hearing on January 25, 2008, Petitioner, while under oath and in open court, acknowledged
that his plea and decision to enter into the written plea agreement was knowing and
voluntarily. These statements under oath and in open court are entitled to a presumption of
verity, and there has been no evidence offered by the Petitioner that would overcome this
presumption. See United States v. Martinez, 169 F.3d 1049, 1054 (7th Cir. 1999).
Moreover, Petitioner acknowledges that he entered into the agreement knowingly and
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voluntarily in his filings with the court in this case.
Petitioner, however, argues at great length that he is able to demonstrate ineffective
assistance of counsel in connection with negotiating the plea agreement itself. Specifically,
Petitioner explains that Taylor was ineffective primarily4 because Taylor promised that he
would contest his status as a career offender at sentencing and failed to do so. Petitioner
further asserts that but for Taylor’s promise to contest his status as a career offender at
sentencing, he would not have been willing to enter into the plea agreement. However,
Petitioner does not allege that Taylor, or the government, made any promise that he would
not be sentenced as a career offender or that he would receive any particular sentence from
this court—instead, Petitioner claims solely that Taylor promised he would contest such a
status.5 Even assuming that everything that Petitioner claims in this appeal is accurate, under
Seventh Circuit precedent, Petitioner’s claim fails to demonstrate that Petitioner received
ineffective assistance of counsel in connection with negotiating the plea agreement.
4
Petitioner also seems to argue that Taylor was ineffective for advising him, during the
plea negotiations, that Taylor would be unlikely to be successful in arguing that Petitioner should
not be considered a career offender. This claim has no merit, as this statement was an accurate
prediction based on the law at the time of the plea negotiations. Moreover, if this statement was
made by Taylor, it makes Petitioner’s argument that he would not have entered into the plea
agreement absent Taylor’s promise to challenge his career offender status less credible.
5
This court believes that this distinction is very important in this case. The promise to
contest career offender status certainly is not ineffective assistance of counsel. Alternatively,
if Taylor had promised Petitioner that he would not be considered a career offender if he
entered into the plea agreement, that promise might present this court with a reason to find
ineffective assistance of counsel at the time the plea agreement was being negotiated.
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The Seventh Circuit has explained that the claimed ineffective assistance of counsel
must relate to the negotiation of the agreement itself—it is insufficient for a petitioner to
establish that counsel was ineffective after the agreement was entered into, such as at the
subsequent sentencing hearing. See Mason, 211 F.3d at 1069. In Mason, the Seventh Circuit
upheld the district court’s decision to enforce the waiver of petitioner’s post-conviction relief
because the petitioner’s claim of ineffective assistance of counsel related only to counsel’s
performance at sentencing. Id. In this case, Petitioner’s claims of counsel’s ineffectiveness,
which focus on Taylor’s failure to live up to his promise at sentencing, are remarkably
similar to those that the Seventh Circuit considered in Mason. See id. (“[Petitioner] merely
challenges the fact that his attorney did not adequately challenge the drug quantity for which
[petitioner] was held accountable and the fact that he did not persist in his request for a
downward departure greater than the two levels granted by the sentencing court.”).
Petitioner’s own argument contained in his Reply (#21) makes it clear that Taylor was not
ineffective in negotiating the plea agreement:
It was not until his counsel failed to inform him of the Begay decision (which
dramatically impacted the law on career offender status) one week prior to Bond’s
sentencing, and not until Bond’s counsel then failed to contest Bond’s career offender
status at sentencing, that his counsel rendered himself ineffective.
See Petitioner’s Reply (#21), p. 5. This acknowledgment by Petitioner of the timing of
Taylor’s claimed ineffectiveness demonstrates to this court that Petitioner is not claiming he
received ineffective assistance in negotiating the plea agreement. Rather, it is clear that
Petitioner’s only claims of ineffectiveness relate to Taylor’s performance at the sentencing
hearing by: (1) failing to make himself aware of all relevant case law, namely the Supreme
Court’s decision in Begay; and (2) failing to live up to the promise to contest Petitioner’s
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status as a career offender. Unfortunately for the Petitioner, he waived such claims of
ineffectiveness by entering into the plea agreement knowingly and voluntarily. Therefore,
this court finds that the waiver contained in the plea agreement between the Petitioner and the
government is enforceable and bars Petitioner’s Motion pursuant to 28 U.S.C. § 2255.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, this court “must
issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” “When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim,” which has happened here, “a
[certificate of appealability] should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and 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)
(emphasis added). If the district court denies the certificate, a petitioner may request that a
circuit judge issue one. Fed. R. App. Proc. 22(b)(1). This court concludes that jurists of
reason would not find it debatable whether Petitioner’s Motion should be dismissed because
the waiver in Petitioner’s plea agreement is enforceable. Accordingly, this court declines to
issue a certificate of appealability.
IT IS THEREFORE ORDERED THAT:
(1) Petitioner’s Motions to Vacate, Set Aside, or Correct Sentence Pursuant to 28
U.S.C. § 2255 (#1, #18) are DISMISSED.
(2) Because Petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability is DENIED.
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(3) This case is terminated.
ENTERED this 16th day of December, 2011
s/ Michael P. McCuskey
MICHAEL P. McCUSKEY
CHIEF U.S. DISTRICT JUDGE
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