Collier v. USA

Filing 21

ORDER DISMISSING CASE. Petitioner Artimus Collier's motion for traverse 20 is GRANTED in part and DENIED in part. Petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 1 is DENIED and petitioner's case is DISMISSED with prejudice. The Clerk of the Court is DIRECTED to enter judgment accordingly. Further, the Court shall not issue a certificate of appealability. Signed by Chief Judge David R. Herndon on 11/01/2013. (kbl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ARTIMUS A. COLLIER,
Petitioner,
v.

Civil Case No. 10-cv-979-DRH
Criminal Case No. 09-cr-30076-DRH

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
I.

Introduction and Background

Now before the Court is petitioner Artimus Collier’s motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). Subsequently,
petitioner supplemented his motion (Doc. 12). The government opposes Collier’s
motion (Doc. 13). Petitioner thereafter amended his Section 2255 claim (Doc.
18). Also before the Court is petitioner’s motion for traverse (Doc. 20). Upon
review, the motion for traverse will be interpreted as both a motion for evidentiary
hearing and a motion to supplement petitioner’s Section 2255 claim.

As a

preliminary matter the portion of the motion for traverse the Court interprets as
motion to supplement petitioner’s Section 2255 claim is GRANTED. However,
for the following reasons, his remaining motions are DENIED.
Pursuant to a plea agreement, petitioner entered a plea of guilty to two
counts of possession of crack cocaine with the intent to distribute (Counts I & II of

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the indictment). On October 6, 2010, petitioner moved to have his plea of guilty
withdrawn, alleging inaccurate representations of the relevant conduct guidelines
both by petitioner’s former counsel and in the plea agreement (Doc. 52 in the
criminal case). This Court held a hearing on the issue and denied petitioner’s
motion (Doc. 55 in the criminal case). On November 24, 2010, petitioner was
sentenced to 235 months of imprisonment on each of the counts, to run
concurrently, five years of supervised release, a fine of $1,000, and a $200 special
assessment. No appeal was filed. On December 2, 2010, petitioner filed this
motion pursuant to Section 2255.
II.

Analysis

Petitioner entered into a plea agreement with the government in an attempt
to benefit himself. In exchange for the benefits he received, petitioner waived his
right to direct appeal and to a collateral attack under Section 2255. Further,
petitioner agreed that he was fully satisfied with the representation he received
from his counsel.

The petitioner’s waiver to a collateral attack under Section

2255 is excepted if the sentence imposed is in excess of the Sentencing
Guidelines. The waiver also does not apply to:
1) any subsequent change in the interpretation of the law by the United
States Supreme Court of the United States court of Appeals for the
Seventh Circuit, which is declared retroactive by those Courts, and
which renders the defendant actually innocent of the charges covered
herein, and 2) appeals based upon Sentencing Guideline amendments
which are made retroactive by the United States Sentencing
Commission.
See Doc. 13-1, Plea Agreement, § III ¶¶2, 3.

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“It is well-settled that waivers of direct and collateral review in plea
agreements are generally enforceable.” Hurlow v. United States., 726 F.3d 958,
964 (7th Cir. 2013) (citing United States v. Chapa, 602 F.3d 865, 868 (7th Cir.
2010); Jones v. United States, 167 F.3d 1142, 1144-45 (7th Cir. 1999)).
However, waivers contained in a plea agreement are unenforceable in certain
circumstances akin to those in which a contract would be unenforceable. Id. For
example, the waiver is unenforceable if the dispute falls outside the scope of the
waiver or if the government has materially breached the agreement. Id. Further,
given the Constitutional limits placed on plea agreements, appellate and collateral
review waivers cannot be invoked against claims that counsel was ineffective in
the negotiation of the plea agreement. Id.
Not every claim of ineffective assistance of counsel rises to the level
contemplated by the Seventh Circuit. Id. at 966. The focus of the inquiry should
be “the nature of the advice and the voluntariness of the plea, not the existence . . .
of an antecedent constitutional infirmity.” Tollett v. Henderson, 411 U.S. 258,
266 (1973). The key question is whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases.

Id.

“A guilty plea,

voluntarily and intelligently entered, may not be vacated because the defendant
was not advised of every conceivable constitutional plea in abatement he might
have to the charge . . . .” Id. at 267.

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In this case, petitioner raises seven grounds for relief: 1 1) that his counsel
was ineffective for failing to move to dismiss his case on the ground that the Court
lacked jurisdiction because no complaint had been filed; 2) that his counsel was
ineffective for failing to move to suppress evidence in the case and the petitioner’s
recorded statements; 3) that his counsel was ineffective for failing to allege that
the government failed to disclose exculpatory evidence; 4) that his counsel was
ineffective for failing to investigate and inform the petitioner that his due process
rights had been violated during his arrest in the case, 2 5) that his counsel was
ineffective for failing to file a timely notice of appeal, 6) that the government failed
to submit the necessary judicial documentation at sentencing, and 7) that he is
entitled to resentencing under Aprendi and Alleyne.
None of petitioner’s ineffective assistance of counsel claims (claims 1-5) rise
to the level required by the Seventh Circuit to vacate his plea agreement. Claims
1, 3, 4, and 5 involve procedural or factual misunderstandings. While claim 2
does address a potential constitutional violation similar to that contemplated in
Hurlow, the Court finds that it does not overcome the waiver provision.
Specifically, Claim 2 involves the seizure of items in plain view in the petitioner’s
car and a statement made to police after petitioner vocally and in writing waived

1

The Court extrapolated these seven claims after a thorough review of petitioner’s original motion
(Doc. 1), his supplement (Doc. 12), his motion to amend (Doc. 18), and his motion for traverse
(Doc. 20).
2
In petitioner’s motion to amend (Doc. 18), he requests that his due process claims be amended
in light of the Supreme Court’s decision in Bailey v. United States. Bailey v. United States, No.
11-770 (Feb. 19, 2013) (finding the rule in Michigan v. Summers, 452 U.S. 692, detention
incident to the execution of a search warrant, limited to the immediate vicinity of the premises to
be searched).
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his Miranda rights.

A defense attorney would not be remiss for not filing a

suppression motion in this instance.
Petitioner’s next claim, claim 6 that the Government did not provide the
Court with sufficient information to determine petitioner’s sentence, is also
meritless.

The Court was provided with ample information to appropriately

determine

petitioner’s

career

offender

status

including

a

sentencing

recommendation.
Finally, in claim 7 petitioner argues that his sentence should be vacated in
light of the recent Alleyne decision. Alleyne v. United States, __ U.S. __, 133
S.Ct. 2151 (June 17, 2013). While the plea agreement provides an exception to
the collateral attack waiver for Supreme Court decisions that apply retroactively,
Alleyne does not apply retroactively. See Simpson v. United States, 721 F.3d
875 (7th Cir. 2013).
III.

Motion for Evidentiary Hearing

As the record “conclusively demonstrates that the [petitioner] is entitled to
no relief,” the portion of petitioner’s motion for traverse the Court is construing as
a motion for evidentiary hearing is DENIED. Prewitt v. U.S., 83 F.3d 812, 820
(7th Cir. 1996); see also Almonacid v. U.S., 476 F.3d 518, 521 (7th Cir. 2007).
IV.

Certificate of Appealability

Under Rule 11(a) of THE RULES GOVERNING SECTION 2255 PROCEEDINGS, the
“district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Thus, the Court must determine whether

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petitioner’s claims warrant a certificate of appealability pursuant to 28 U.S.C. §
2253(c)(2).
A certificate of appealability is required before a petitioner may appeal a
district court’s denial of his habeas petition. A petitioner is entitled to a certificate
of appealability “only if the applicant has made a substantial showing of the denial
of a constitutional right.” This requirement has been interpreted by the Supreme
Court to mean that an applicant must show that “reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed
further.”

Miller-el v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).
Here, the undersigned finds no basis for a determination that the Court’s
instant decision to dismiss petitioner’s claims is debatable or incorrect. For the
reasons stated above, petitioner asserted seven meritless claims that reasonable
jurists would conclude as barred from review. Therefore, the Court declines to
certify any issues for review pursuant to 28 U.S.C. § 2253(c).
V.

Conclusion

Accordingly, petitioner Artimus Collier’s motion for traverse (Doc. 20) is
GRANTED in part and DENIED in part. Petitioner’s motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED and
petitioner’s case is DISMISSED with prejudice.

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The Clerk of the Court is

DIRECTED to enter judgment accordingly. Further, the Court shall not issue a
certificate of appealability.
IT IS SO ORDERED.
Signed this 1st day of November, 2013.

Digitally signed by
David R. Herndon
Date: 2013.11.01
16:40:46 -05'00'
Chief Judge
United States District Court

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