United States et al v. Benyamin Smith

Filing 29

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 12/16/2013.Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BENYAMIN SMITH,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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13 C 4885
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Petitioner Benyamin Smith pleaded guilty to one count of wire fraud in April 2012
pursuant to a written plea agreement. United States v. Smith, 11 CR 413, Docs. 85-86.
Paragraph 23(b) of the plea agreement provides that if the Government moved for a USSG 5K1.1
reduction at sentencing, Smith would waive “his right to challenge his conviction and sentence,
and the manner in which the sentence was determined, and (in any case in which the term of
imprisonment and fine are within the maximums provided by statute) 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.” Id., Doc.
86, ¶ 23(b). Paragraph 23(b) further provides that the waiver “does not apply to a claim of
involuntariness, or ineffective assistance of counsel, which relates directly to this waiver or to its
negotiation.” Ibid. At sentencing, the Government moved the court under USSG 5K1.1 to
impose a sentence of two-thirds of the low end of the advisory Sentencing Guidelines range, and
the court granted the motion. Id., Docs. 109, 157. No direct appeal was filed.

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Now before the court is a pro se petition that Smith has filed under 28 U.S.C. § 2255.
Docs. 1, 8. He then filed an amended petition, which states three claims. Doc. 15. Smith has
withdrawn one of his claims, and the two remaining claims have no merit.
First, Smith argues that his defense counsel was ineffective in several respects. Doc. 15
at 4-7. The Government argues that because the ineffective assistance claim nowhere contends
that defense counsel was ineffective with respect to the appellate waiver itself, the waiver bars
the claim. Doc. 7 at 5; Doc. 17. Although the plea agreement on its face indeed purports to bar
all ineffective assistance claims except those related to the appellate waiver or its negotiation, the
Government’s argument is incorrect. As the Seventh Circuit recently confirmed in Hurlow v.
United States, 726 F.3d 958 (7th Cir. 2013), appellate waivers, no matter how narrowly crafted,
do not bar a defendant’s claim that he entered into a plea agreement based upon advice of
counsel that fell below Sixth Amendment standards. See id. at 964-68. Put simply, “an
attorney’s ineffectiveness with regard to the plea agreement as a whole, and not just the specific
waiver provision at issue, renders the waiver unenforceable.” Id. at 965. Thus, while the
appellate waiver bars Smith’s ineffective assistance claim to the extent it addresses matters other
than the assistance he received in connection with the plea agreement, the claim is not barred to
the extent it does address that issue.
Although that portion of the ineffective assistance claim survives the appellate waiver, it
nonetheless fails on the merits. “In order to make out a claim for ineffective assistance of
counsel in the context of a guilty plea, a defendant must show (1) that counsel’s performance fell
below an objective standard of reasonableness; and (2) that there is a reasonable probability that,
but for counsel’s errors, the defendant would not have pled guilty and would have insisted on
going to trial.” Bethel v. United States, 458 F.3d 711, 716 (7th Cir. 2006). Even assuming that

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Smith could show that counsel’s performance fell below an objective standard of reasonableness,
Smith has not shown, and has not even argued, that but for his counsel’s alleged errors, he would
not have pleaded guilty and would have gone to trial. His ineffective assistance claim
accordingly is rejected. See United States v. Multani, 420 F. App’x 621, 624 (7th Cir. 2011)
(rejecting an ineffective assistance claim where “there is nothing in the record or in [the
petitioner’s] Rule 51(b) response suggesting that [he] would not have pleaded guilty had the
court discussed with him the forfeiture count at the plea colloquy”); Hutchings v. United State,
618 F.3d 693, 697 (7th Cir. 2010) (“We find that Hutchings’s ineffective assistance claim fails
because he did not adequately show that he would not have pled guilty even had his attorney
fully explained to him that a Rule 35 motion to reduce his sentence was not guaranteed.”)
(citations omitted); Bethel, 458 F.3d at 718-19.
Second, Smith claims that the Bureau of Prisons failed to grant him appropriate credit for
time spent in pretrial detention. Doc. 15 at 8-9. In its response brief, the Government argues that
this claim is not properly brought in a § 2255 petition, but instead must be presented via a
grievance to the Bureau of Prisons and then in a § 2241 motion in the district where Smith is
imprisoned. Doc. 7 at 7-8 (citing Rogers v. United States, 180 F.3d 349, 356-57 (1st Cir. 1999),
and Clemente v. Allen, 120 F.3d 703, 704-05 (7th Cir. 1997)). Apparently convinced by the
Government’s argument, Smith’s reply brief withdraws this claim. Doc. 23 at 2.
Third, Smith claims that he was improperly assessed a USSG 3B1.1 sentencing
enhancement in the calculation of his advisory Sentencing Guidelines range. Doc. 15 at 9. That
claim is foreclosed by Smith’s appellate waiver. See Roberts v. United States, 429 F.3d 723, 724
(7th Cir. 2005) (“There is no question that Roberts’s waiver encompasses the claims presented in
the § 2255 motion. Accordingly, the district court correctly dismissed the action.”); Keller v.

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United States, 657 F.3d 675, 679 (7th Cir. 2011) (“Moreover, Keller’s plea agreement waived his
right to appeal or collaterally attack a within-guidelines or statutory minimum sentence.”);
Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000) (enforcing the petitioner’s waiver
of his right to bring a § 2255 challenge). To the extent that this claim can be deemed part of
Smith’s ineffective assistance claim, it is meritless because Smith has not argued, let alone
shown, that but for his counsel’s alleged error with respect to the calculation of his Guidelines
range, he would not have pleaded guilty and would have gone to trial.
For the foregoing reasons, Smith’s § 2255 petition is denied.

December 16, 2013
United States District Judge

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