Barnes v. USA

Filing 3

ORDER DIRECTING the government to file a response within 45 days to the petitioner's motion for habeas relief under 28 U.S.C. § 2255. Signed by Judge William D. Stiehl on 9/10/2012. (jaf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN A. BARNES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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NO. 11-CV-1082-WDS

MEMORANDUM & ORDER
STIEHL, District Judge:
Before the Court is petitioner’s motion to vacate, set aside or correct sentence pursuant to
28 U.S.C. § 2255. The petitioner was convicted, after a plea of guilty, on two counts of
distribution of crack cocaine. United States v. Barnes, No. 10-30004 (S.D. Ill. 2010). As part of
that plea of guilty, the petitioner entered into an appellate waiver (See, para. III-1; Doc. 36,
United States v. Barnes, No. 10-30004). He now seeks habeas review, asserting ineffective
assistance of counsel for failing to object to the career offender sentencing enhancement based
on an Illinois assault conviction from 1998; for failing to file a timely notice of appeal; and for
failing to object to the career offender guidelines, which amounted to a sentence which was cruel
and unusual punishment.
The Court has conducted several threshold inquiries. Petitioner is a federal prisoner, in
custody, and this is the Court that imposed his sentence. See 28 U.S.C. § 2255(a). His claims for
relief rely upon the grounds that his sentence was imposed "in violation of the Constitution or
laws of the United States." See id. The motion was filed within one year of the date on which
petitioner's conviction became final. See Clay v. United States, 537 U.S. 522, 525 (2003); 28

U.S.C. § 2255(f). This is not a "second or successive" motion that would require leave from the
court of appeals. 28 U.S.C. § 2255(h). In his plea agreement, petitioner waived his right to
contest his conviction and sentence under any provision of federal law, including § 2255 (Doc.
36, 10-30004). However, such a waiver, though binding in other respects, does not prevent
review of an assertion that the plea agreement itself was a product of ineffective assistance of
counsel. United States v. Jemison, 237 F.3d 911, 916, n.8 (7th Cir. 2001).
Accordingly, the Court DIRECTS the Government to respond to petitioner's motion
(Doc. 1), attaching all relevant portions of the record, within forty-five (45) days of the date of
this Order.
IT IS SO ORDERED.
DATE:

10 September, 2012
/s/ WILLIAM D. STIEHL
DISTRICT JUDGE