Hatchett v. United States of America

Filing 8

OPINION denying 1 Motion to Vacate, Set Aside or Correct Sentence(2255)by Plaintiff Timmie Hatchett. The Court declines to issue a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings. The Clerk will terminate this case. Entered by Judge Richard Mills on 06/20/2017. (SKN, ilcd)

E-FILED

Wednesday, 21 June, 2017 08:46:18 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
TIMMIE HATCHETT,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

NO. 14-3141

OPINION
RICHARD MILLS, U.S. District Judge:
Pending before the Court is the Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence by a Person in Federal Custody. As directed, the
Government filed a Response to the Petitioner’s Motion. The Petitioner has also filed
a Reply. The Court finds that an evidentiary hearing is not warranted.
I.
In 2012, Petitioner Timmie Hatchett was charged in by indictment with
possession of cocaine with the intent to distribute (Count One) and possession of a
firearm in furtherance of a drug trafficking crime (Count Two). See United States v.
Timmie Hatchett, Case No. 12-30082. On January 7, 2013, the Petitioner pled guilty
to both charges.
On July 25, 2013, the Petitioner was sentenced to a total term of 81 months

imprisonment, followed by five years of supervised release. The imprisonment term
consisted of 21 months on Count One followed by 60 months on Count Two, to run
consecutively. Pursuant to a retroactive sentencing guideline amendment, the
Petitioner’s sentence was later reduced to 78 months imprisonment [Doc. No. 34],
consisting of 18 months on Count One followed by 60 months on Count Two.
The Petitioner did not file a direct appeal following his sentencing. His motion
under § 2255 is timely.
II.
The Petitioner’s motion lists the following grounds: (1) ineffective assistance
of counsel/due process violation because the Court erroneously calculated his
criminal history by giving excessive weight to a traffic violation and suspension; (2)
ineffective assistance of counsel because counsel did not effectively represent the
Petitioner; and (3) ineffective assistance of counsel for failure to file a direct appeal.
The Petitioner’s plea agreement includes a waiver of his right to appeal and
collaterally attack his sentence. An appellate waiver is generally enforceable. See
United States v. Hurlow, 726 F.3d 958, 964 (7th Cir. 2013). Plea agreement waivers
are governed by ordinary contract law principles and are unenforceable in certain
circumstances, such as if the Government breaches the agreement or the dispute falls
outside the agreement. See id. Moreover, the plea agreement is unenforceable if
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counsel was ineffective in negotiating the agreement as a whole. See id. at 965.
Therefore, a petitioner need not specifically allege that counsel was ineffective in
negotiating the waiver provision. See id.
Upon reviewing the record, the Court concludes that Petitioner has not
provided any basis for the Court to find that the collateral attack waiver should not
apply in this case. The Petitioner’s arguments relate to sentencing issues that are not
addressed in the plea agreement. Accordingly, the Court concludes that the waiver
should be enforced and the motion under § 2255 will be dismissed on that basis.
Each of the grounds asserted by the Petitioner relates in some way to his
argument that counsel was ineffective for failing to address a sentencing issue–an
error in calculating his criminal history or failing to argue that his criminal history
category overstates his actual criminal history and his failure to file a notice of appeal
as to those grounds.
The Court further finds that, even if the waiver was not enforceable, the
Petitioner would not be entitled to habeas relief. The Petitioner argues that his two
prior convictions for driving while his license was revoked should not have counted
for criminal history points. One point was added for each conviction. However, one
point for each conviction was appropriate under United States Sentencing Guidelines
§§ 4A1.1(c) and 4A1.2(c)(1) because convictions for driving with a revoked license
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which occurred within 10 years of the instant offense are counted. Accordingly, there
was no error in calculating the Petitioner’s criminal history points. Counsel’s failure
to argue that there was error does not constitute ineffective assistance of counsel.
The Petitioner’s assertion that counsel was ineffective for failing to raise an
argument about the Petitioner’s relatively minor criminal history is simply incorrect.
The Court has listened to a recording of the sentencing hearing and one of the
mitigating factors raised by counsel is that the Petitioner’s Criminal History Category
of III over-represented his actual criminal history–due to multiple driving on revoked
license convictions. The Court agreed with counsel’s argument and noted that
particular mitigating factor at sentencing and listed it in the Judgment [Doc. No. 30]
as a basis for the below-guideline sentence.
Additionally, even assuming the collateral waiver is not enforceable, the Court
notes that counsel was quite effective in representing the Petitioner. Counsel raised
a number of mitigating factors. These included the Petitioner’s relatively minor
criminal history and the harshness of the five-year mandatory term on Count Two.
Counsel argued that a below-guideline sentence was appropriate for those and other
reasons. The Court agreed with counsel’s argument that such a sentence was
warranted based on the Petitioner’s circumstances. Although he may have desired an
even lower sentence, the Petitioner is unable to show that counsel’s performance “fell
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below an objective standard of reasonableness” and he cannot establish prejudice.
The Petitioner also cannot establish prejudice for counsel’s failure to file a notice of
appeal.
Because the Petitioner is unable to show ineffective assistance or prejudice, he
is entitled to no relief even without the collateral attack waiver. The Petitioner’s
motion under § 2255 would still be denied.
An appeal may be taken if the Court issues a certificate of appealability. See
28 U.S.C. § 2253(c)(1)(A). Because the Petitioner has not “made a substantial
showing of the denial of a constitutional right,” see 28 U.S.C. § 2253(c)(2), the Court
declines to issue a certificate of appealability under Rule 11 of the Rules Governing
Section 2255 Proceedings.
Ergo, the Motion under 28 U.S.C. § 2255 of Timmie Hatchett to Vacate, Set
Aside or Correct Sentence [d/e 1] is DENIED.
The Court declines to issue a certificate of appealability pursuant to Rule 11
of the Rules Governing Section 2255 Proceedings.
The Clerk will terminate this case.
ENTER: June 20, 2017
/s/ Richard Mills
Richard Mills
United States District Judge

FOR THE COURT:

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