Purham v. United States of America
Filing
9
OPINION entered by Judge Sue E. Myerscough on 01/05/2015. SEE WRITTEN OPINION. The United States of America's Motion to Dismiss the Petitioner's Motion Pursuant to 28 U.S.C. § 2255 (d/e 3 ) is GRANTED IN PART and DENIED IN PART. Pe titioner's claim that counsel provided ineffective assistance of counsel by failing to advise Petitioner, when signing the Plea Agreement, that Petitioner might be subject to enhancements that would increase his advisory sentencing guideline r ange and telling Petitioner he would only receive 10 to 12 years' imprisonment falls outside the scope of the waiver. Petitioner's claim that the Magistrate Judge did not have the authority to accept the guilty plea is summarily denied. The Government shall file an Answer to the remaining claim on or before January 26, 2015. Petitioner shall file a reply on or before February 23, 2015. The Court will then determine whether to set this matter for an evidentiary hearing. See Rule 8 of the Rules Governing Section 2255 Proceedings for the United States District Courts. In anticipation of the Court considering the appointment of counsel, Petitioner is DIRECTED to complete a financial affidavit so that the Court can determine wh ether Petitioner is financially unable to obtain adequate representation. Petitioner is also DIRECTED to forward a certified copy of his trust fund ledger for the last six months. Petitioner shall do so on or before January 26, 2015. The Clerk of the Court is DIRECTED to forward to Petitioner the Financial Affidavit CJA 23.(DM, ilcd)
E-FILED
Tuesday, 06 January, 2015 04:22:47 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
HOWARD PURHAM,
)
)
Petitioner,
)
)
v.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)
No. 14-3232
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
In July 2014, Petitioner Howard Purham filed a Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255 (Petition) (d/e 1). In August 2014, Respondent United States
of America filed a Motion to Dismiss (d/e 3) asserting that
Petitioner’s claims are barred by the collateral attack waiver in the
Plea Agreement.
The Motion to Dismiss is GRANTED IN PART and DENIED
PART. Petitioner’s claim that counsel provided ineffective
assistance of counsel by failing to advise Petitioner that Petitioner
might be subject to enhancements that would increase his advisory
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sentencing guideline range and by telling Petitioner he would only
receive 10 to 12 years’ imprisonment falls outside the scope of the
waiver. Petitioner’s claim that the Magistrate Judge did not have
the authority to accept the guilty plea (which was not raised in the
Petition but was raised in Petitioner’s response to the Government’s
Motion to Dismiss) is summarily denied.
I. BACKGROUND
On February 8, 2012, a federal grand jury charged Petitioner
with several offenses, including conspiring with his brother,
Sylvester Purham, to distribute 280 grams of cocaine base (crack)
(Count 1). United States v. Howard Purham, Case No. 12-CR30019, Indictment (d/e 21). On May 11, 2012, Petitioner
appeared before United States Magistrate Judge Byron G.
Cudmore to enter a plea of guilty to Count 1 of the Indictment
pursuant to a Plea Agreement. As part of that Plea Agreement,
Petitioner waived his right to file a direct appeal or to collaterally
attack his conviction or sentence. Case No. 12-CR-30019, Plea
Agreement ¶¶ 11, 12 (d/e 30).
Magistrate Judge Cudmore, with the consent of the parties,
conducted the plea colloquy and prepared a Report and
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Recommendation recommending that the Court accept the guilty
plea. See Case No. 12-CR-30019, Notice Regarding Entry of Plea
and Signed Consent (d/e 31); Report and Recommendation (d/e
33). On May 31, 2012, this district judge entered a Text Order
accepting Petitioner’s plea of guilty to Count 1 and adjudging
Petitioner guilty of the offense. On August 22, 2013, the Court
sentenced Petitioner to 240 months’ imprisonment.
In July 2014, Petitioner filed the present § 2255 Petition. In
the Petition, Petitioner raises two grounds. First, Petitioner asserts
that he asked his attorney if there was anything that could happen
to enhance Petitioner’s anticipated advisory guideline sentencing
range of 151 to 188 months. His attorney told him “no.” Second,
Petitioner asserts that his attorney misled him to believe that if he
signed the Plea Agreement, he would not receive more than 10 to 12
years’ imprisonment. Petitioner asks for a new plea agreement and
a new sentence.
In August 2014, the Government filed a Motion to Dismiss
(d/e 3) on the ground that the § 2255 Petition was barred by
Petitioner’s waiver of his right to collaterally attack his conviction
and sentence. In the Motion, the Government argues that
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Petitioner agreed to waive his right to collaterally attack his
sentence on any ground other than that the waiver was involuntary
or counsel was ineffective in connection with the waiver itself, and
Petitioner did not bring such claims in his Petition. Moreover, the
Government claims the record shows Petitioner received effective
assistance and voluntarily agreed to the waiver. Mot. to Dismiss p.
4 (d/e 3).
Petitioner filed a response, asserting that if his attorney had
told him that he would receive multiple enhancements and that he
would not receive the low end of his guideline range, he would not
have pleaded guilty. See Resp. (d/e 5). Petitioner further asserts
that the Plea Agreement did not benefit him at all. Petitioner also
challenges the method by which the Magistrate Judge purportedly
accepted Petitioner’s plea, in light of United States v. Harden, 758
F.3d 886, 888 (7th Cir. 2014) (holding that a magistrate judge is
“not permitted to accept guilty pleas in felony cases and adjudge a
defendant guilty”).
In October 2014, the Court directed the Government to file a
supplemental memorandum addressing what effect, if any, the new
Department of Justice policy regarding waivers of ineffective
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assistance of counsel claims, had on the case.1 On November 3,
2014, the Government filed a supplemental memorandum
indicating that the United States will not seek to enforce a
defendant’s waiver of his right to collateral attack if “(1) the
petitioner’s counsel rendered ineffective assistance of counsel
resulting in prejudice; or (2) the petitioner raised a serious
debatable issue.” See Mem., p. 1-2 (d/e 7). The Government
asserts that applying that policy to this case would have no impact.
Specifically, the Government argues that Petitioner’s attorney
did not render ineffective assistance, and that Petitioner cannot
show prejudice. The Government states that Petitioner received a
higher sentence than the parties estimated at the time Petitioner
pleaded guilty because Petitioner failed to abide by the terms of his
Plea Agreement. The Government also claims that Petitioner did
In October 2014, the Department of Justice issued a press release
indicating that the DOJ will no longer ask criminal defendants who plead guilty
to waive their right to bring future claims of ineffective assistance of counsel.
See http://www.justice.gov/opa/pr/attorney-general-holder-announces-newpolicy-enhance-justice-departments-commitment-suppoet (last visited
December 4, 2014). The press release also indicates that the memo provided to
all federal prosecutors “instructs prosecutors to decline to enforce waivers that
have already been signed in cases where defense counsel provided ineffective
assistance of counsel resulting in prejudice or where the defendant’s ineffective
assistance claim raises a serious issue that the court should resolve.” Id.
1
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not support his Petition with a detailed and specific affidavit which
shows that Petitioner has actual proof of the allegations. The
Government asserts that had Petitioner “raised even a colorable
claim of ineffective assistance of counsel, the United States would
decline to enforce his waiver,” but Petitioner failed to do so. Mem.,
p. 4 (d/e 7).
Petitioner responds that his counsel should have informed
Petitioner that he was not sure how much time Petitioner would get
and should have informed Petitioner of the possibility of receiving
multiple enhancements. See Resp. (d/e 8). Petitioner asserts that
had counsel done so, Petitioner would not have signed the Plea
Agreement. Petitioner asks that his motion be granted and that he
“have a fair try” with his case and “be sentence[d] with justice.”
Resp., p. 2 (d/e 8).
II. ANALYSIS
Section 2255 allows a federal prisoner to attack his sentence
on the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, the court was without
jurisdiction to impose such sentence, the sentence was in excess of
the maximum authorized by law, or that the sentence is otherwise
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subject to collateral attack. 28 U.S.C. § 2255(a). A defendant may
validly waive the right to collaterally attack his conviction or
sentence as part of a valid plea agreement. Keller v. United States,
657 F.3d 675, 681 (7th Cir. 2011) (citing Jones v. United States,
167 F.3d 1142, 1144-45 (7th Cir. 1999)). Courts generally uphold
and enforce such waivers with limited exceptions. The limited
exceptions include when the plea agreement was involuntary; the
district court relied on a constitutionally impermissible factor at
sentencing; the sentence exceeded the statutory maximum; or the
defendant claims ineffective assistance of counsel for performance
directly related to negotiation of the plea agreement. Keller, 167
F.3d at 681 (citing Jones, 167 F.3d at 1144-45).
Construing Petitioner’s pleadings liberally, the Court finds that
Petitioner makes the following claims: (1) counsel was ineffective for
(a) failing to advise Petitioner, when signing the Plea Agreement,
that Petitioner might be subject to enhancements that would
increase his advisory sentencing guideline range and (b) telling
Petitioner that he would only receive 10 to 12 years’ imprisonment;
and (2) the Magistrate Judge did not have the authority to accept
the guilty plea.
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A.
Petitioner’s Claims that Counsel Was Ineffective for Failing to
Advise Petitioner of the Possible Enhancements to the
Advisory Sentencing Guideline Range and Telling Petitioner he
Would Only Receive 10 to 12 years’ Imprisonment are Not
Barred by the Collateral Attack Waiver
Petitioner argues that he received ineffective assistance of
counsel in negotiating the Plea Agreement. Specifically, Petitioner
asserts that counsel told Petitioner that no enhancements would be
applied to increase Petitioner’s sentencing guideline range of 151 to
188 months. In the PSR, however, the Probation Office applied
several enhancements, which increased Petitioner’s offense level
and advisory sentencing guideline range.
Petitioner also claims that counsel told him that if Petitioner
signed the Plea Agreement, Petitioner would receive no more than
10 to 12 years’ imprisonment. The Court sentenced Petitioner to 20
years. Petitioner now claims that, had he known that he would
receive multiple enhancements and that he would not receive the
low end of his anticipated guideline range, he would not have
pleaded guilty.
The Government argues that Petitioner’s claims are barred by
Petitioner’s waiver of his right to collaterally attack his conviction
and sentence. The Government claims Petitioner waived his right to
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collaterally attack his sentence on any grounds other than that the
waiver was not voluntary or counsel was ineffective in connection
with the waiver itself. Mot. to Dismiss, p. 4 (d/e 3).
The Seventh Circuit has explicitly held that “a collateral review
waiver does not prevent a habeas petitioner from being heard on
claims that his plea agreement was the product of ineffective
assistance of counsel.” Hurlow v. United States, 726 F.3d 958, 964
(7th Cir. 2013) (explaining that the court has “never held that the
waiver is unenforceable only when counsel is ineffective in
negotiating the specific waiver provision”); see also Jones, 167 F.3d
at 1145 (“Justice dictates that a claim of ineffective assistance of
counsel in connection with the negotiation of a [plea] agreement
cannot be barred by the agreement itself—the very product of the
alleged ineffectiveness”).
Petitioner essentially alleges that his plea agreement was the
product of ineffective assistance. An attorney is deficient if he fails
to learn all of the relevant facts of the case, make an estimate of a
likely sentence, and communicate the results of his analysis to his
client before allowing his client to plead guilty. Bethel v. United
States, 458 F.3d 711, 717 (7th Cir. 2006). A gross
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mischaracterization of the sentencing consequences may indicate
deficient performance, although it is not proof of deficient
performance. Id. (noting that the court must determine whether
counsel made a good-faith effort to learn the facts and estimate the
sentence). Therefore, the Court finds the claims are not barred by
the waiver in the Plea Agreement.
B.
Petitioner’s Claim that the Magistrate Judge Erroneously
Accepted Petitioner’s Guilty Plea is Summarily Denied
Petitioner also essentially argues that his guilty plea was
accepted by the magistrate judge in violation of the Federal
Magistrate Act, 28 U.S.C. § 636. This claim was raised for the first
time in Petitioner’s response to the Government’s Motion to
Dismiss.
The Court summarily denies Petitioner’s claim. Even if the
waiver of the right to collaterally attack the conviction does not
preclude this claim, Petitioner is not entitled to relief. In support of
his claim, Petitioner cites United States v. Harden, 758 F.3d 886.
In United States v. Harden, the magistrate judge, with the
parties’ consent, conducted the plea colloquy, and accepted the
plea. Harden, 758 F.3d at 887. Thereafter, the district judge
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conducted a sentencing hearing and sentenced the defendant. Id.
On appeal, the Seventh Circuit reversed the defendant’s conviction,
holding that magistrate judges “are not permitted to accept guilty
pleas in felony cases and adjudge a defendant guilty.” Id. at 888
(basing this determination on 28 U.S.C. § 636 and Supreme Court
decisions limiting federal magistrate judges’ authority). The Court
of Appeals also noted, however, that it is a permissible practice for
the magistrate judge to conduct the plea colloquy and prepare a
report and recommendation for the district judge. Id. at 891.
In this case, on May 11, 2012, Magistrate Judge Cudmore,
with the consent of the parties, conducted the plea colloquy and
prepared a Report and Recommendation recommending that the
Court accept the guilty plea. See Case No. 12-CR-30019, Notice
Regarding Entry of Plea and Signed Consent (d/e 31); Report and
Recommendation (d/e 33). On May 31, 2012, this district judge
entered a Text Order accepting Petitioner’s plea of guilty to Count 1
and adjudging Petitioner guilty of the offense. Therefore, the Court
followed the practice deemed permissible by the Seventh Circuit,
and Petitioner’s guilty plea is not void.
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III. CONCLUSION
For the reasons stated, the United States of America’s Motion
to Dismiss the Petitioner’s Motion Pursuant to 28 U.S.C. § 2255
(d/e 3) is GRANTED IN PART and DENIED IN PART. Petitioner’s
claim that counsel provided ineffective assistance of counsel by
failing to advise Petitioner, when signing the Plea Agreement, that
Petitioner might be subject to enhancements that would increase
his advisory sentencing guideline range and telling Petitioner he
would only receive 10 to 12 years’ imprisonment falls outside the
scope of the waiver. Petitioner’s claim that the Magistrate Judge
did not have the authority to accept the guilty plea is summarily
denied. The Government shall file an Answer to the remaining
claim on or before January 26, 2015. Petitioner shall file a reply on
or before February 23, 2015. The Court will then determine
whether to set this matter for an evidentiary hearing. See Rule 8 of
the Rules Governing Section 2255 Proceedings for the United States
District Courts. In anticipation of the Court considering the
appointment of counsel, Petitioner is DIRECTED to complete a
financial affidavit so that the Court can determine whether
Petitioner is financially unable to obtain adequate
Page 12 of 13
representation.
Petitioner is also DIRECTED to forward a
certified copy of his trust fund ledger for the last six months.
Petitioner shall do so on or before January 26, 2015. The Clerk
of the Court is DIRECTED to forward to Petitioner the
Financial Affidavit CJA 23.
ENTER: January 5, 2015
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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