Hughes v. Holder et al
Filing
9
OPINION entered by Judge Richard Mills on 08/30/2012. SEE WRITTEN OPINION. The Government's Motion to Dismiss (d/e 8 ) is ALLOWED. The Petitioner's Motion to Vacate, Set Aside or Correct Sentence (d/e 1 ) is DISMISSED. The Court declines to issue a certificate of appealability. (DM, ilcd)
E-FILED
Friday, 31 August, 2012 01:18:34 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RANDY HUGHES,
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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
No. 11-cv-3065
OPINION
RICHARD MILLS, U.S. District Judge:
The Motion to Dismiss [d/e 8], filed by Respondent United States
of America, is allowed for the following reasons.
I.
A.
On June 15, 2006, Petitioner Randy Hughes sold 0.3 grams of
cocaine to a confidential source and an undercover agent. On June 16,
2006, Hughes sold 6.2 grams of crack cocaine to the same pair.
On March 18, 2009, a grand jury in the Central District of Illinois
returned a single count indictment, alleging that Hughes distributed five
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or more grams of crack cocaine. On April 27, 2009, Hughes pled guilty
pursuant to a plea agreement.
In the plea agreement in his criminal case, Hughes waived his right
to appeal the conviction and sentence, and the right to collaterally attack
the conviction or sentence. See Plea Agreement [d/e 11], ¶¶ 9-10, in
Case No. 09-cr-30028. The collateral attack waiver states the following:
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. The defendant’s
attorney has fully discussed and explained the defendant’s right to
attack the conviction and/or sentence collaterally with the
defendant. 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 the defendant’s attorney may
have given the defendant, in exchange for the concessions made by
the United States in this plea agreement, the defendant hereby
knowingly and voluntarily waives his right to collaterally attack
the conviction and/or sentence. The rights waived by the
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defendant include his right to challenge the amount of any fine or
restitution, in any collateral attack, including, but not limited to, a
motion brought under Title 28, United States Code, Section 2255.
See id. at ¶ 10.
On September 14, 2009, Judge Jeanne E. Scott sentenced Hughes
to 71 months imprisonment and five years of supervised release, and the
written judgment was entered the following day.1
B.
On March 8, 2011, Hughes filed his Petition for Writ of Habeas
Corpus [d/e 1] in the instant case. The Petition was filed pursuant to 28
U.S.C. § 2241, and Hughes named the Attorney General and his warden
as respondents. The Court transferred the action to the U.S. District
Court for the Eastern District of North Carolina—the district where
Hughes was confined—because, under Seventh Circuit precedent, only
the district of confinement has jurisdiction over a § 2241 action. See
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On November 2, 2011, Judge Sue E. Myerscough allowed an agreed motion to
reduce sentence in Hughes’ criminal case, reducing his sentence to forty-one months
imprisonment. According to the Bureau of Prisons Inmate Locator Service, Hughes
was released from custody on March 16, 2012. See Inmate Locator, http:// www.
bop. gov/ iloc 2/ Locate Inmate. jsp (last visited Aug. 24, 2012). The Court takes
judicial notice of this information that is available to the public. See United States v.
Basher, 629 F.3d 1161, 1165 n.2 (9th Cir. 2011).
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Order of April 19, 2011 [d/e 3]. An Order was entered on October 31,
2011, transferring the case back to this district. See Order [d/e 5].
The Court announced its intent to recharacterize the Petition as a
motion under 28 U.S.C. § 2255 and provided Hughes the warnings
required under Castro v. United States, 540 U.S. 375 (2003). See Order
of Dec. 5, 2011 [d/e 6]; Text Order of Dec. 9, 2011. After Hughes failed
to timely respond, the Court converted the Petition to a § 2255 filing,
named the United States the Respondent, dismissed the warden and the
Attorney General from the case, and ordered the United States to
respond. See Order of February 7, 2012 [d/e 7].
On July 13, 2012, the Government filed a Motion to Dismiss [d/e
8], alleging that the § 2255 action is untimely and that it is barred by
Hughes’ waiver of collateral attack rights in the plea agreement.
On July 17, 2012, the Court noted that the Hughes had been
released from the Bureau of Prisons, but had not updated his address.
See Text Order of July 17, 2012. The Court extended the time to
respond to the Motion to Dismiss, and directed that a copy of the
Motion be sent to his address on file with the Probation Office. See id.
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Hughes has failed to submit a timely response.
II.
The U.S. Court of Appeals for the Seventh Circuit has repeatedly
held that a proper waiver of the right to collaterally attack a sentence
under 28 U.S.C. § 2255 will be enforced. See Roberts v. United States,
429 F.3d 723, 724 (7th Cir. 2005) (dismissing a § 2255 appeal on the
basis of waiver while noting that the court has “never been reluctant to
hold criminal defendants to their promises”); Bridgeman v. United
States, 229 F.3d 589, 591 (7th Cir. 2000) (“A plea agreement that also
waives the right to file a § 2255 motion is generally enforceable”); Mason
v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000).
There are only two exceptions to the enforceability of such a
waiver: (1) if it was involuntary, or (2) if there is a claim of ineffective
assistance of counsel in connection with the negotiation of the waiver.
See Mason, 211 F.3d at 1069. Any claim must tie directly to the
negotiation of the waiver, not merely to the plea agreement generally, or
to the decision to plead guilty. See Jones v. United States, 167 F.3d
1142, 1145 (7th Cir. 1999) (“we reiterate that waivers are enforceable as
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a general rule; the right to mount a collateral attack pursuant to § 2255
survives only with respect to those discrete claims which relate directly to
the negotiation of the waiver”).
After carefully reviewing the record in the Hughes’ criminal case,
the Court concludes that there is no legitimate reason to suspect that the
Hughes’ waiver of his collateral attack rights was either involuntary or
the result of ineffective assistance of counsel.
In the plea agreement, Hughes stated that he was entering into the
plea agreement voluntarily and that he was satisfied with the legal
services provided by counsel. See Plea Agreement [d/e 11], ¶¶ 10, 23, in
Case No. 09-cr-30028.
In light of the foregoing, and in the absence of any response to the
Government’s Motion to Dismiss, the Court concludes that dismissal is
warranted.
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III.
In any event, the Motion is untimely. There are strict time limits
for filing a § 2255 motion:
(f) A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes
final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f).
Judgment was entered on September 15, 2009. At that time, a
defendant had only ten days to file a notice of appeal. See Federal Rule
of Appellate Procedure 4(b)(1)(A) (time was extended to fourteen days,
effective Dec. 1, 2009).
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Hughes did not file a notice of appeal. Accordingly, his judgment
became final after his ten-day window to appeal expired. See Mederos v.
United States, 218 F.3d 1252, 1253 (11th Cir. 2000); Murphy v. United
States, 634 F.3d 1303, 1307 (11th Cir. 2011); cf. Clay v. United States,
537 U.S. 522, 527 (2003).
Hughes initiated this action more than a year later—on March 8,
2011. None of the other exceptions seem to apply. Therefore, the
Motion is time-barred.
IV.
“The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Rule 11(a), Rules
Governing Section 2255 Proceedings. “A certificate of appealability may
issue . . . only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
makes a substantial showing where reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate
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to deserve encouragement to proceed further.” Sandoval v. United
States, 574 F.3d 847, 852 (7th Cir. 2009) (quotation marks omitted).
Reasonable jurists would not dispute that this action is barred by
the waiver contained in the plea agreement, or that it is untimely.
Accordingly, the Court will not issue a certificate of appealability. If the
Hughes wishes to appeal this Court’s ruling, he must seek a certificate of
appealability from the Court of Appeals under Federal Rule of Appellate
Procedure 22.
IV.
Ergo, the Government’s Motion to Dismiss [d/e8] is ALLOWED.
The Petitioner’s Motion to Vacate, Set Aside or Correct Sentence [d/e 1]
is DISMISSED.
The Court declines to issue a certificate of appealability.
IT IS SO ORDERED.
ENTER: August 30, 2012
/s/ Richard Mills
FOR THE COURT:
_______________________________________________________________________________________________________________________________________
Richard Mills
United States District Judge
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