United States of America v. Kapan

Filing 12

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 12/27/2012. (mgh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff-Respondent,
Case No. 11 C 3665
v.
Hon. Harry D. Leinenweber
MURAT KAPAN,
Defendant-Petitioner.

MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Murat Kapan’s Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255 (“Section 2255”).

For the following reasons, the Motion

is dismissed.
I.

BACKGROUND

On October 29, 2009, pursuant to a written Plea Agreement,
Murat Kapan (hereinafter, the “Petitioner” or “Kapan”) pled
guilty to a superseding information charging him with three
counts of using a telephone in facilitating and causing the
commission of a drug trafficking offense, in violation of 21
U.S.C. §

843(b).

Following

the

Court’s

acceptance

of

the

Petitioner’s guilty plea on May 6, 2010, the Court sentenced
Petitioner to a term of 84 months imprisonment.

On May 31, 2011, Petitioner filed the instant Motion to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255
(“Section 2255”).

In that Motion, Kapan claimed he was entitled

to relief because his attorney was ineffective.
Kapan

alleged

ineffective

assistance

of

Specifically,

counsel

for

his

attorney’s failure to (1) file a notice of appeal; (2) object to
the finding that the underlying drug trafficking offense involved
crack cocaine and to the Court’s imposition of consecutive
sentences; and (3) obtain proper credit for good-time behavior
while in federal custody.
On July 5, 2011, this Court dismissed Kapan’s third argument
determining that challenge with respect to good-time credit must
be brought under 28 U.S.C. § 2241 and finding that Kapan was
required to bring this challenge within the district in which he
is confined.

[See Dkt. 4].

In that July 5 Order, the Court

directed the Government to respond to the remainder of Kapan’s
Motion,

and

granted

Kapan

time

to

file

a

Reply

to

the

Government’s response.
On August 4, 2011, the Government responded to Kapan’s
Section 2255 petition by filing a Motion to Dismiss.
Government’s

Motion,

it

contends

that

Kapan’s

In the

Section

2255

petition should be dismissed pursuant to the Plea Agreement.
Subsequently, Kapan twice moved for an extension of time to
file his Reply.

The Court granted both of these Motions, and
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extended Kapan’s time to file a Reply until December 30, 2011.
[See Dkt. 7 & Dkt. 9].

Despite the Court’s extensions, Kapan

failed to file a timely Reply and instead did not file until
January 13, 2012. Notwithstanding this tardiness, the Court will
consider Kapan’s Reply brief when determining whether Kapan’s
Section 2255 Petition should be dismissed.
II.

LEGAL STANDARD

Under Section 2255 a prisoner may petition the court which
imposed his

sentence

to vacate,

set aside,

or

correct

the

sentence on the basis that the sentence imposed is in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose the sentence, or that
the sentence was in excess of the maximum authorized by law.

See

Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir. 1992).

To

receive relief
“fundamental

under

defect

Section 2255,
which

miscarriage of justice.”

inherently

a

prisoner
results

must

in

a

show

a

complete

United States v. Addonizio, 442 U.S.

178, 185 (1979). Alternatively, if a prisoner can show the trial
court made “an omission inconsistent with the rudimentary demands
of fair procedure” relief can also be provided.

Hill v. United

States, 368 U.S. 424, 428 (1962).
A defendant can waive his right to challenge a sentence in
a plea agreement.

The Seventh Circuit strictly enforces such

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waivers. See United States v. Cieslowski, 410 F.3d 353, 364 (7th
Cir. 2005).

Indeed, the Seventh Circuit instructs that when a

defendant expressly waives the right to file a Section 2255
motion in a plea agreement, the defendant may then file a Section
2255 motion only if he can demonstrate that the waiver was either
unknowing or involuntary, or was the result of ineffective
assistance of counsel.
1069 (7th Cir. 2000).

Mason v. United States, 211 F.3d 1065,
Since Mason, the Seventh Circuit has held

that a defendant can also attack a sentence in a Section 2255
motion notwithstanding a waiver, if the defendant alleges that
the plea agreement fails on contractual grounds, “such as mutual
mistake or breach.”

Cantu v. United States, No. 3:12-CV-181 RM,

2012 U.S. Dist. LEXIS 134663 at *10 (N.D. Ind. Sept. 20, 2012)
citing United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005).

III.
A.

DISCUSSION

Preclusive Effect of Plea Agreement Waiver

The Government argues that the Court should dismiss Kapan’s
Section 2255 Motion because Kapan waived his right to file such
a motion in his Plea Agreement.

In relevant part, the Plea

Agreement states:
Defendant further understands he is waiving all
appellate issues that might have been available if he
had exercised his right to trial. Defendant is aware
that Title 28 United States Code Section 1291, and
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Title 18 United States Code 3742, afford a defendant
the right to appeal his conviction and the sentence
imposed.
Acknowledging this, defendant knowingly
waives the right to appeal his conviction, any pretrial rulings by the Court, and any part of the
sentence (or manner in which that sentence was
determined), including any term of imprisonment and
fine within the maximums provided by law, and his
attorney’s alleged failure or refusal to file a notice
of appeal, in any collateral attack or future
challenge, including but not limited to a motion
brought under Title 28, United States Code, Section
2255 . . . The waiver in this paragraph does not apply
to a claim of involuntariness, or ineffective
assistance of counsel, which relates directly to this
waiver or to its negotiation . . .
Govt.’s Mot. to Dismiss Def.’s Pet. to Vacate, Set Aside, or
Correct Sentence at 3; United States v. Kapan, No. 08-CR-829-01,
[Dkt. 50 at 16].
In his initial Section 2255 motion, Kapan’s two remaining
arguments allege that he is entitled to relief because his lawyer
was ineffective for (1) providing false information that he could
not appeal since he pled guilty; and (2) failing to object when
Kapan was sentenced under the “crack cocaine guidelines.”
Petr.’s Mot. Under 28 U.S.C. § 2255 at 6.
The Court finds neither of these claims relates directly to
the waiver or plea negotiations, and therefore rejects these
arguments.

See Jones v. United States, 167 F.3d 1142, 1145 (7th

Cir. 1999) (stating “waivers are enforceable as a general rule;
the right to mount a collateral attack pursuant to sec. 2255
survives only with respect to those discrete claims which relate
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directly to the negotiation of the waiver.”); see also Mason, 211
F.3d

at

1069

(approving

a

trial

court’s

dismissal

of

a

defendant’s section 2255 motion because the defendant failed to
challenge the voluntariness of the plea agreement and failed to
challenge the effectiveness of his attorney’s representation with
respect to negotiating the plea agreement).
B.

Arguments Raised in Kapan’s Reply Brief

Notwithstanding

the

lack

of

merit

in

Kapan’s

initial

Section 2255 motion, the Court notes that in Kapan’s untimely
Reply to the Government’s Motion to Dismiss, he raises additional
arguments in support of his Section 2255 Motion.
in

Specifically,

his Reply, Kapan argues (1) that he was denied effective

assistance of counsel because his lawyer failed to advise him of
the advantages and disadvantages in filing an appeal; (2) that
the Government breached the plea agreement; (3) that his three
count conviction is multiplicitous; and (4) that his guilty plea
was not knowing and voluntary.

Kapan failed to present any of

these arguments in his opening Section 2255 Motion.

Because of

this, it is within the Court’s discretion to deem such arguments
waived.
Cir.

See White v. United States, 23 Fed.Appx. 570, 571 (7th

2001)

(upholding

the

proposition

that

“[a]

reply

brief . . . is not the proper vehicle to raise new arguments not
presented in an opening brief.”).

While the Court finds that

Kapan’s tardiness paired with his failure to raise such arguments
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in his initial motion are more than sufficient grounds to deem
such arguments waived, the Court nonetheless will address briefly
the arguments Kapan asserted in his Reply.
1.

Advantages and Disadvantages of Appealing

Kapan argues that he is entitled to relief because when he
waived his appeal rights under the Plea Agreement, his attorney
failed to advise him of the “advantages and disadvantages of
filing an appeal.”

Petr.’s Traverse Challenging the Govt.’s

Resp. to Dismiss His Pet. at 2.

As support, Kapan cites Roe v.

Flores-Ortega, 528 U.S. 470 (2000) and United States v. Peguero,
526 U.S. 23 (1999).

The Court finds Kapan’s reliance on both

cases misplaced.
First, Peguero is inapposite to the instant case because in
Peguero the Supreme Court addressed the issue of whether a
district court, (not an attorney) was required to notify a
defendant of his right to appeal, and whether a district court’s
failure to do so entitled a defendant to habeas relief. Peguero,
526 U.S. at 24-28.

In determining it did not, the Court found

the fact that the defendant had independent knowledge of his
right

to

appeal

relevant

establish prejudice.

because

the

defendant

could

not

Id. at 29.

Here, Kapan alleges he is entitled to relief under Section 2255
because his attorney allegedly failed to discuss with him the

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advantages and disadvantages in filing an appeal.

First, the

Court notes that this alleged failure is in contradiction of
Kapan’s prior representations he made under oath at his plea
hearing.

At the plea hearing, the Court asked Kapan if he

understood the terms of the Plea Agreement and if he consulted
with his lawyer about such terms, to which Kapan answered he had.
In light of this representation, the Court does not find that now
Kapan’s bare assertion to the contrary is sufficient to establish
that

his

lawyer

neglected

to

discuss

disadvantages of filing an appeal.

the

advantages

and

Furthermore, the Court finds

that even if Kapan could establish that his attorney failed to
consult him

with

respect

to

this,

he

cannot

establish

the

requisite prejudice pursuant to the court’s holding in Peguero.

The Court similarly finds Roe v. Flores-Ortega in inapposite
to Kapan’s argument with respect to his lawyer’s alleged failure.
In Roe, the Supreme Court vacated an appellate court’s decision
granting a habeas petition on the basis of ineffective assistance
of counsel.

Roe, 528 U.S. at 477-78.

In Roe, the Supreme Court

rejected the proposition that an attorney must file an appeal
unless the defendant specifically instructs otherwise.

Id.

Instead, the Supreme Court held that when a defendant asserts an
ineffective assistance of counsel claim for failure to appeal,

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the defendant “must demonstrate that there is a reasonable
probability that, but for counsel’s deficient failure to consult
with him about an appeal, he would have timely appealed.”
484.

Id. at

The Court in Roe continued by articulating that whether a

defendant can make this showing will often turn to the facts of
the particular case.

“[E]vidence that there were nonfrivolous

grounds for appeal or that the defendant in question promptly
expressed a desire to appeal will often be highly relevant in
making this determination.”

Id. at 485.

After the Court in Roe

reviewed the record, it vacated the decision of the appellate
court because it was unable to determine whether the defendant’s
attorney had a duty to consult with the defendant “either because
there were potential grounds for appeal or because respondent
[defendant] expressed interest in appealing,” and if she did in
fact owe such a duty, whether the defendant was prejudice by her
failure to do so.

Id. at 487.

This Court not only finds Roe entirely distinguishable from
the case at bar, but also finds the holding in Roe supports the
Government’s position more than Kapan’s. First in Roe, there was
no appellate waiver in the defendant’s plea agreement as there is
here.

Next, based on the Court’s holding in Roe, in order for

Kapan to make an ineffective assistance of counsel claim based on
his

attorney’s

failure

to

explain

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the

“advantages

and

disadvantages of appeal” Kapan would need to establish that he
had potential grounds for appeal or had immediately expressed a
desire to appeal.

Id.

The Court finds here that Kapan failed to

make such assertions adequately.
While Kapan does argue that he was entitled to an appeal
because his sentence was not within the maximum provided by law,
the Court finds this assertions entirely without merit.

The

Court reminds Kapan that his sentence was lower than the range
provided for in the Sentencing Guidelines.

See United States v.

Kapan, No. 08-CR-829, [Dkt. 50, Page ID # 85] (stating that
Kapan’s anticipated advisory Sentencing Guidelines range [is] of
100 to 125 months’ imprisonment, in addition to any supervised
release, fine, and restitution the Court may impose.).
previously

noted,

imprisonment.

the

Court

sentenced

Kapan

to

84

As

months

As such, the Court does not find that Kapan has

asserted a nonfrivolous basis for appeal.

Therefore, the Court

finds that Kapan cannot now argue, that pursuant to Roe, he was
denied effective assistance of counsel because his lawyer failed
to discuss the advantages and disadvantages of filing an appeal.
(As an aside, the Court again points out that additional support
of its decision lies in the Court’s colloquy with Kapan at the
plea hearing where Kapan indicated that he had consulted with his
attorney when he signed the plea agreement.)

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2.

Breach of Plea Agreement

Kapan next argues that he is entitled to relief under
Section 2255 because the Government breached the Plea Agreement.
Kapan’s argument is difficult to discern, but it seems that
Kapan’s basis for the allegation that Government breached the
agreement is the language in the plea agreement itself.

Kapan

argues that while he pled guilty to three “phone counts,” he did
not agree to be sentenced for another crime under the “crack
cocaine guidelines.”

Petr.’s Traverse Challenging the Govt.’s

Resp. to Dismiss his Pet. to Vacate, Set Aside, or correct
Sentence at 3.
The Court rejects this argument and reminds Kapan that
pursuant to its sentencing order, the Court sentenced Kapan under
21 U.S.C. § 843(b), not under the “crack cocaine guidelines,” as
Kapan contends.

See United States v. Kapan, No. 08-Cr-829-01,

[Dkt. 67, Page ID # 120].

Moreover, the Court fails to see how

Kapan’s allegations somehow allege a breach of the Plea Agreement
on the part of the Government.
After reviewing the Plea Agreement, it is clear that Kapan
pled

guilty

to

three

counts

of

“intentionally

us[ing]

a

communication facility, namely a telephone, in committing and in
causing and facilitating the commission of a felony of Title 21
United States Code, Section 841(a)(1), namely the distribution of
a controlled substance, in violation of Title 21 United States
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Code, Section 843(b).” United States v. Kapan, No. 08-CR-829-01,
[Dkt. 50 at 2-4].

Additionally, the beginning of the Plea

Agreement provides the factual basis for Kapan’s charges.

It

reads, “KAPAN told CW that he would sell him crack cocaine, that
it was the “top of the line,” and that the price would be $750
per ounce.”

Id. at 3.

Kapan argues that because he only pled

guilty to “phone counts,” this did not permit the Government to
argue,

nor

the

Court

to

consider,

the

underlying

felony

associated with his use of the telephone.

However, in the

section

“Offense

of

the

Plea

Agreement

entitled

Level

Calculations,” the Plea Agreement states that “[t]he base offense
level is Level 30, pursuant to Guideline § 2D1.1(a)(5), because
the amount of cocaine base in form of crack cocaine involved in
the underlying offense for which defendant is accountable was at
least 50 grams, but not more than 150 grams.”

Id. at 9.

This

indicates that part of the Court’s consideration at sentencing
would be the underlying controlled substance felony associated
with his charge under 21 U.S.C. § 843(b).

As further support,

the Plea Agreement also provides that “[e]ach party is free to
recommend whatever sentence it deems appropriate.”

Id. at 12.

Finding no breach on the part of the Government, the Court
rejects Kapan’s argument. See also United States v. Whitlow, 287
F.3d 638, 640 (7th Cir. 2002) (holding that “[a] prosecutor’s
failure to keep one part of the plea agreement usually leads to
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a judicial order of specific performance, it does not relieve the
defendant of all promises.

Unless a prosecutor’s transgression

is so serious that it entitles the defendant to cancel the whole
plea agreement, a waiver of appeal must be enforced.”).
3.

Multiplicity

Kapan next argues that he is entitled to relief because his
lawyer

failed

to

inform

him

that

his

conviction

was

unconstitutional because it was multiplicitous.
“Multiplicity

is

the

charging

separate counts of an indictment.”

of

a

single

offense

in

United States v. Starks, 472

F.3d 466, 468-69 (7th Cir. 2006).

The dangers posed by a

multiplicitous indictment include the threat of violating the
Double Jeopardy Clause of the Fifth Amendment and the potential
to expose a defendant to receiving multiple punishments for the
same offense.

Starks, 472 F.3d at 469; United States v. Conley,

291 F.3d 464, 470 (7th Cir. 2002).

The traditional test to

determine whether or not an indictment is multiplicitous is to
determine “whether each count requires proof of a fact which the
other does not.

If one element is required to prove the offense

in one count which is not required to prove the offense in the
second count, there is no multiplicity.”
Gonzalez, 933 F.2d 417, 424 (7th Cir. 1991).

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United States v.

“Section 843(b) specifically provides that “each separate
use of a communication facility shall be a separate offense under
this subsection,” thus, Congress clearly intended to authorize
separate punishments for each use, even if each use facilitates
the same narcotics felony.”

United States v. Hunter, No. 3:05-

CR-54(JBA), 2005 U.S. Dist. LEXIS 27838 at *6 (D. Conn. Nov. 10.
2005) citing 21 U.S.C. § 843(b).

Moreover, each charge under 21

U.S.C. § 843(b) requires proof of a separate fact, “namely the
proof that the defendant placed a different and separately
identifiable telephone call.

Id. citing Andrews v. United

States, 817 F.2d 1277, 1281 (7th Cir. 1987).
Notwithstanding

the

fact

that

Kapan

is

precluded

from

raising this argument in light of his Plea Agreement, the Court
here finds that each of Kapan’s three counts for which he pled
guilty required different proof.
dates and

times

with respect

to

In the Plea Agreement, exact
Kapan’s

three

charges

are

sufficiently outlined and reveal that each of the counts for
which

Kapan

conversation.

was

convicted

involve

a

separate

telephone

Therefore, the Court does not find that any of

Kapan’s convictions to be multiplicitous.
4.

Knowingly and Voluntarily

When determining whether a defendant’s plea agreement was
made knowingly and voluntarily the Court examines the entire

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record.

See generally Ramirez v. United States, No. 11-CV-3113,

2012 WL 588968 (C.D. Ill. Feb. 22, 2012).
After carefully reviewing the record in Kapan’s case, the
Court concludes that there is no legitimate reason to suspect
that his waiver of his collateral attack rights was either
involuntary or the result of ineffective assistance of counsel.
Here, the waiver of the Plea Agreement could not be more clear:
“. . . defendant knowingly waives the right to appeal his
conviction, any pre-trial rulings by the Court and any part of
the sentence . . . including but not limited to a motion brought
under Title 28 United States Code, Section 2255 . . .”

Govt.’s

Mot. to Dismiss Def.’s Pet. to Vacate, Set Aside, or Correct
Sentence at 3.

Moreover, there is nothing in the record that

indicates that Kapan involuntary entered into the Plea Agreement.
To the contrary, the transcript of the plea hearing illustrates
that the Court went to great lengths to ensure that Kapan
knowingly and voluntarily entered into the Plea Agreement.

The

Court placed Kapan under oath, determined he was competent to
proceed,

and

asked

Kapan

specific

questions

voluntariness to enter into the Plea Agreement.

regarding

At the plea

hearing, the following colloquy occurred:
The Court:
Now, did you sign this plea agreement?
The Defendant: Yes, sir.
The Court:
Is that your signature over your name?
The Defendant: Yes, sir.
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the

The Court:
Did you read it before you signed it?
The Defendant: Yes, sir.
The Court:

Did you talk to your lawyer Mr.
Beaumont before you signed it?
The Defendant: Yes, sir.
The Court:
And did you understand the terms of it?
The Defendant: Yes, sir.
The Court:
Was it a free and voluntary act?
The Defendant: Yes.
Thus, in light of the foregoing, the Court concludes that
Kapan knowingly and voluntarily entered into the Plea Agreement.
As such, the Court finds dismissal of Kapan’s Section 2255
Petition is warranted.

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”).

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IV.

CONCLUSION

For the reasons stated herein, Kapan’s Petition to Vacate,
Set Aside, or Correct Sentence is dismissed.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE:12/27/2012

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