McWhorter v. Madigan

Filing 19

ORDER: Kevin McWhorters petition for writ of habeas corpus pursuant to 28 U.S.C.§2254 is DENIED.The Clerk of Court shall enter judgment in favor of respondent. Signed by Judge David R. Herndon on 9/15/2016. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEVIN McWHORTER,

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)
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)
)
)
)
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Petitioner,
vs.
LISA MADIGAN,
Respondent.

Civil No. 13-cv-1303-DRH-CJP

MEMORANDUM and ORDER
HERNDON, District Judge:
This case presents the rare instance where an inmate in the custody of the
Bureau of Prisons can bring a petition for writ of habeas corpus pursuant to 28
U.S.C. §2254.
In 2009, petitioner Kevin McWhorter pleaded guilty to one count of
conspiracy to manufacture and distribute methamphetamine in this District. U.S.

v. McWhorter, Case No. 09-30046-JPG.

He was sentenced to 240 months

imprisonment, and is presently in the custody of the Bureau of Prisons on that
sentence. His federal sentence was enhanced based on a prior state conviction for
manufacturing methamphetamine, Case No. 01-CF-63, Shelby County, Illinois.
Petitioner also had a second drug conviction in Shelby County, Illinois, in 2002,
but the Government elected not to pursue enhancement based on the 2002
conviction. See, Notice of Government’s Intent to Seek Enhanced Sentence, Doc.

Page 1 of 14

12, Ex. 1, p. 21, and Plea Agreement, Ex. 1, p. 28. 1
Petitioner

argues

that

both

of

his

state

drug

convictions

were

unconstitutionally imposed because he was not advised of his right to appointed
counsel.
Relevant Facts and Procedural History
McWhorter pleaded guilty to one count of unlawful manufacture of
methamphetamine in Shelby County, Case No. 01-CF-63, on July 2, 2001.
Pursuant to a plea agreement, he was sentenced to three years imprisonment on
that same day. He appeared without an attorney, but the judge informed him that
he had a right to be represented by an attorney, and that, if he could not afford an
attorney, the judge would appoint the public defender to represent him.

He

waived counsel. Doc. 12, ex. 1, pp. 3-4.
Petitioner did not move to withdraw his plea or file an appeal in state court.
In his habeas petition, he claims to have filed a motion to vacate in 2003,
asserting that he had not been appointed counsel. See, Doc. 1, pp. 2-3, & 11.
According to the docket sheet for the 2001 Shelby County case, McWhorter did
not file anything in 2003 in that case.

Ex. 1, pp. 47-48.

McWhorter filed an affidavit in the 2002 case.

In March 2003,

Doc. 1, p. 65.

The affidavit

complained that the IDOC was not giving him six months of good conduct time
and school credit that he had earned. The affidavit did not mention anything
about a lack of counsel at this plea. Ex. 1, pp. 72-73.

The Court uses the document and page numbers assigned by the CM/ECF filing system in this
case.
1

Page 2 of 14

In November 2009, petitioner was sentenced to 240 months imprisonment
in his federal case, U.S. v. McWhorter, Case No. 09-30046-JPG. See, Judgment,
Ex. 1, pp. 40-45. He did not file a direct appeal. He filed a motion under 28
U.S.C. §2255 in January 2012, but then filed a motion to voluntarily dismiss,
which was granted. McWhorter v. U.S., Case No. 2-089-JPG, Doc. 3.
In June 2012, McWhorter filed Motions for Writ of Error Coram Nobis in
both of his Shelby County cases. Ex. 1, p. 76. The judge denied the motions by
minute entry because the “form of relief sought by defendant has been abolished.”
Ex. 1, p. 66.
In August 2012, McWhorter filed a motion to vacate the judgment in both of
his Shelby County cases. Ex. 1, pp. 53, 83. With respect to the 2001 case, he
alleged that he did not waive appointment of counsel. He stated “The Court never
made any admonishments regarding defense counsel [and] the Court never
advised the cause and nature of the charged offense.” Ex. 1, p. 54, &5.
An August 31, 2012, note on the court’s docket sheet for Case No. 01-CF-63
says “see 02-CF-87.”

On the docket sheet for the 2002 case, on that same date,

the judge denied the motion to vacate by minute entry because the motion was
untimely and the court had no jurisdiction to grant the relief requested. Ex. 1,
pp. 66-67.
McWhorter filed a notice of appeal. Ex. 1, p. 58. The Office of the State
Appellate Defender was appointed to represent him. Ex. 1, p. 62. On November
29, 2012, the Appellate Court entered a show cause order granting McWhorter’s

Page 3 of 14

counsel fourteen days in which to “show cause why the defendant has not waived
his right to a direct appeal for failing to file a timely 604(d) motion.” The order
pointed out that, under state rules, no appeal could be filed from a judgment
entered on a guilty plea unless the defendant had filed a motion to withdraw the
plea (a “604(d) motion”) within thirty days of the imposition of sentence, which
McWhorter had not done. The court stated “Since defendant did not file a timely
604(d) motion, he has waived his right to a direct appeal.” The State Appellate
Defendant filed a “no response letter.” The Appellate Court then dismissed the
appeal “for the reasons set forth in this court’s 11/29/12 show cause order.” Ex.
1, pp. 94-98.
Respondent represents that she has confirmed that McWhorter did not file
a petition for leave to appeal in the Illinois Supreme Court. Doc. 11, p. 4. In Doc.
1, p. 2, &9(e), petitioner states that “Court would not file appeal since no decision
on the merits was issued in the Court of Appeals.”

At page 9 of his habeas

petition, McWhorter states that the “Illinois Supreme Court would not accept filing
of an appeal since no decision on the merits was rendered by the Court of
Appeals.”
Applicable Legal Standards
1.

Availability of 28 U.S.C. §2254
Generally, the validity of a fully-expired sentence cannot be challenged by

way of a petition under 28 U.S.C. §2254. “[O]nce a state conviction is no longer
open to direct or collateral attack in its own right because the defendant failed to

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pursue those remedies while they were available (or because the defendant did so
unsuccessfully),

the

conviction

may

be

regarded

as

conclusively

valid.”

Lackawanna County District Attorney v. Coss, 121 S. Ct. 1567, 1574 (2001).
This remains true even if the prior conviction is later used to enhance another
sentence. There is, however, an exception to the general rule.

A §2254 petition

may be brought to “challenge an enhanced sentence on the basis that the prior
conviction used to enhance the sentence was obtained where there was a failure to
appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v.

Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).” Ibid. In such a
case, the petitioner must satisfy “the procedural prerequisites for relief including,
for example, exhaustion of remedies.” Lackawanna, 121 S. Ct. at 1567.

Lackawanna involved a state prisoner whose current sentence had been
enhanced by a prior state conviction. Here, in contrast, the petitioner is a federal
prisoner whose current sentence was enhanced by a prior state conviction.
However, it appears that the rule of Lackawanna applies to allow a federal
prisoner such as McWhorter to challenge his expired state conviction under
§2254. See, Johnson v. United States, 125 S. Ct. 1571, 1578 (2005), noting that
a federal prisoner “could proceed under §2255 after successful review of the prior
state conviction on federal habeas under §2254 or favorable resort to any
postconviction process available under state law.”
2.

Procedural Prerequisites of 28 U.S.C. §2254
28 U.S.C. §2244 creates a one-year limitation period for filing a petition for

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writ of habeas corpus. Under 28 U.S.C. §2244(d)(1), a person convicted in state
court must file his federal habeas petition within one year of the latest of:
(A)

the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;

(B)

the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;

(C)

the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or

(D)

the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.

The one-year statute of limitations is tolled during the pendency of a
“properly-filed” state postconviction petition. 28 U.S.C. §2244(d)(2).
The one-year statute of limitations is also “subject to equitable tolling in
appropriate cases.” Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). Equitable
tolling applies only where the petitioner shows “’(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way’
and prevented timely filing.”

Holland, 130 S. Ct. at 2562, citing Pace v,

DiGuglielmo, 125 S. Ct. 1807, 1814 (2005). The Supreme Court has emphasized
that “the circumstances of a case must be ‘extraordinary’ before equitable tolling
can be applied.” Holland, 130 S. Ct. at 2564.
A habeas petitioner must also clear two procedural hurdles before the
Court may reach the merits of his habeas corpus petition: exhaustion of remedies
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and procedural default. Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995).
Before seeking habeas relief, a petitioner is required to bring his claim(s) through
“one complete round of the State’s established appellate review process” because
“the exhaustion doctrine is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are
presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119
S.Ct. 1728 (1999), see also 28 U.S.C. §2254(c).

Under the Illinois two-tiered

appeals process, habeas petitioners must fully present their claims not only to an
intermediate appellate court, but also to the Illinois Supreme Court, which offers
discretionary review in cases such as this one. Id. at 843-846.
Analysis
The Court first notes that petitioner’s federal plea agreement included a
waiver of the “right to contest any aspect of his conviction and sentence that could
be contested under Title 18 or Title 28, or under any other provision of federal
law, except that if the sentence imposed is in excess of the Sentencing Guidelines
as determined by the Court (or any applicable statutory minimum, whichever is
greater), the defendant reserves the right to appeal the reasonableness of the
sentence.” Doc. 12, Ex. 1, p. 34. Such waivers are generally enforced, subject to
certain narrow exceptions not at issue here. United States v. Smith, 759 F.3d 702
(7th Cir. 2014).

The waiver almost certainly preludes this action.

However,

because respondent mentions it only in passing and because it is clear that
McWhorter is not entitled to relief on substantive grounds, the Court will not rely

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on the waiver here.
McWhorter alleges three grounds for habeas relief, only one of which is
cognizable here. His first ground is that “I was convicted without the assistance of
counsel; I did not waive counsel, and was not advised I could be appointed
counsel.” Doc. 1, p. 4. The second ground is that the Appellate Public Defender
did not file anything in response to the Illinois Appellate Court’s order to show
cause why his appeal should not be dismissed.

The third ground is that

petitioner believes that he was guilty of only misdemeanor charges, rather than
the state felonies to which he pleaded guilty.
The second and third grounds are not possible bases for habeas relief.

Lackawanna permits challenging an expired sentence only by bringing a Gideon
claim, that is, a claim that appointed counsel was denied to an indigent defendant.

Lackawanna, 121 S. Ct. at 1574. 2 A Gideon claim does not encompass other
Sixth

Amendment

claims

involuntariness of the plea.

such

as

ineffective

assistance

of

counsel

or

Custis v. United States, 114 S. Ct. 1732, 1738

(1994). See also, Lackawanna, 121 S. Ct. at 1574, citing Custis and noting that
the failure to appoint counsel for an indigent defendant is a “unique constitutional
defect” which “warrants special treatment.”

Therefore, to the extent that the

second ground can be interpreted as a claim of ineffective assistance of counsel,
the claim is foreclosed.

Lackawanna “recognized a single exception: a petitioner

Lackawanna suggested, but did not decide, that habeas review of an expired state sentence might
also be available in situations where federal habeas review “may effectively be the first and only
forum available for review of the prior conviction.” Lackawanna, 121 S. Ct. at 1575. Because
state court review was available here, it is not necessary to consider this possibility further.

2

Page 8 of 14

may challenge an enhanced sentence when it is based on a previous conviction
that was obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.
792, 9 L.Ed.2d 799 (1963), which announced the Sixth Amendment right to
counsel.”

Grigsby v. Cotton, 456 F.3d 727, 730 (7th Cir. 2006).

A habeas

petition attacking an expired sentence on a basis other than a Gideon claim
should be dismissed. Martin v. Deuth, 298 F.3d 669, 672 (7th Cir. 2002). The
third ground, actual innocence, has not been declared by the Supreme Court to be
a freestanding ground for habeas relief. McQuiggin v. Perkins, 133 S. Ct. 1924,
1931 (2013).
Respondent asserts two procedural issues, that is, that the petition is not
timely and that petitioner’s Gideon claim is procedurally defaulted. Arguably, his
second and third grounds for habeas relief assert matters that go to equitable
tolling of the statute of limitations and cause for procedural default. Because it is
clear that McWhorter’s Gideon claim is baseless, the Court will go directly to the
substantive issue without first resolving issues of timeliness and procedural
default. “It makes sense to tackle the merits first when they are easy and the
limitations question hard, just as it makes sense (and is permissible) to reject a
collateral attack on the merits while other procedural defenses, such as waiver,
default, or lack of exhaustion, remain in the background.

28 U.S.C. §

2254(b)(2).” Estremera v. U.S., 724 F.3d 773, 775 (7th Cir. 2013).
The transcript of the plea and sentencing hearing on the 2001 state charge,
located at Doc. 12, Ex. 1, pp. 1-10, establishes that the factual allegations set

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forth in petitioner’s first ground are not true.
During that hearing, the judge informed McWhorter of the nature of the
charges against him and of the possible range of punishment. McWhorter said
that he understood both. Ex. 1, p. 3. The judge also informed him of his right to
appointed counsel:
You are here without a lawyer today. The state has indicated a possible
plea agreement, but I want to explain to you that you do have a right to have
an attorney. If you want time to consult with a private attorney, I would give
you time to do that. If you couldn’t afford to hire one, I would appoint the
public defender to represent you if that was your request. Do you wish to
be represented by an attorney?
Ex. 1, pp. 3-4.
McWhorter answered, “No, [Y]our Honor. I am well aware of the statutes
containing these acts.” Ex. 1, p. 4.
The judge also advised McWhorter that he had a right to appeal, and that
he would have to file a motion to withdraw his plea within thirty days in order to
file an appeal. The judge told him that, if he needed the assistance of counsel to
file a motion to withdraw his plea, an attorney would be appointed at no cost to
him. Ex. 1, pp. 8-9. 3
Because the judge advised McWhorter of his right to counsel and that the
judge would appoint counsel for him if he could not afford to hire a lawyer,
McWhorter’s substantive Gideon claim fails.
In a memorandum of law attached to his petition, McWhorter argues that

The state court judge similarly advised McWhorter of his right to counsel and to the availability of
appointed counsel in the 2002 case. Ex. 1, pp. 13, 18. Because the 2002 conviction was not used
to enhance petitioner’s federal sentence, the Court will not discuss the 2002 hearing in any detail.

3

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he was not made aware of the dangers and disadvantages of proceeding pro se, as
required by Faretta v. California, 95 S.Ct. 2525 (1975).

Doc. 1, pp. 13-14.

However, Faretta concerns the information that must be communicated to a
defendant in order to enable him to waive the assistance of counsel for trial. A
lesser admonition is needed for an intelligent and knowing waiver of counsel in
connection with a guilty plea. “In the context of a guilty plea, a trial court must
inform a defendant ‘of the nature of the charges against him, of his right to be
counseled regarding his plea, and of the range of allowable punishments
attendant upon the entry of a guilty plea.’” United States v. Feliciano, 498 F.3d
661, 665 (7th Cir. 2007), citing Iowa v. Tovar, 124 S.Ct. 1379, 1383 (2004).
In his reply, petitioner cites Padilla v. Kentucky, 130 S.Ct. 1473 (2010), and

Lafler v. Cooper, 132 S.Ct. 1376 (2012), for the uncontroversial proposition that
a defendant is entitled to the effective assistance of competent counsel in the plea
bargaining process. Doc. 18, pp. 2-3. Those cases do not, as petitioner suggests,
hold that a defendant cannot validly waive the advice of counsel in connection
with a guilty plea. In fact, those cases are not relevant here at all because they do
not involve a waiver of counsel. Petitioner also suggests that he was pressured
into waiving counsel by the judge’s statement that he “would be happy to consider
that [plea agreement] this morning, but if I do that, you are giving up your right to
have an attorney and consult with one.” Doc. 18, p. 3. However, the judge made
that remark at the hearing on the 2002 conviction.

Ex. 1, p. 13.

The 2002

conviction was not used to enhance petitioner’s federal sentence, so any possible

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defect in that conviction is not at issue here. Further, petitioner testified at the
2002 hearing, as he did at the 2001 hearing, that no one had threatened him or
made him any promises to obtain his plea, and that his plea was voluntary. Ex.
1, p. 17.
In short, the state court transcript refutes petitioner’s claim.

He was

advised of his right to appointed counsel, and he waived that right. McWhorter
cannot demonstrate that his 2001 conviction violated Gideon.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, this Court must “issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” A certificate
should be issued only where the petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §2253(c)(2).
In order for a certificate of appealability to issue, petitioner must show that
“reasonable jurists” would find this Court’s “assessment of the constitutional
claims debatable or wrong.”

See, Slack v. McDaniel, 120 S.Ct. 1595, 1604

(2000).
Here, no reasonable jurist would find it debatable whether this Court’s
rulings on the constitutional issues were correct. Accordingly, the Court denies a
certificate of appealability.

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Conclusion
Kevin McWhorter’s petition for writ of habeas corpus pursuant to 28 U.S.C.
§2254 is DENIED.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.
Signed this 15th day of September, 2016.

Digitally signed by
Judge David R. Herndon
Date: 2016.09.15
15:14:01 -05'00'
United States District Judge

Page 13 of 14

Notice
If petitioner wishes to appeal the dismissal or denial of his petition, he may
file a notice of appeal with this court within thirty days of the entry of judgment.
Fed. R. App. P. 4(a)(1)(A). A motion for leave to appeal in forma pauperis should
set forth the issues petitioner plans to present on appeal. See Fed. R. App. P.
24(a)(1)(C).
A certificate of appealability is required to appeal from the dismissal or
denial of a §2254 petition. Rule 11 of the Rules Governing §2254 Cases requires
that, when entering a final order adverse to the petitioner, the district court must
issue or deny a certificate of appealability.

Here, the Court has denied a

certificate. In order to appeal the dismissal or denial of his petition, petitioner
must obtain a certificate of appealability from the court of appeals.
Petitioner cannot appeal from this Court’s denial of a certificate of
appealability. Further, a motion to reconsider the denial does not extend the time
for appeal. See, Rule 11(a).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Federal Rule of Civil Procedure 59(e) must be filed no later than
28 days after the entry of the judgment—a deadline that cannot be extended. A
proper and timely Rule 59(e) motion may toll the thirty day appeal deadline.
Other motions, including a Rule 60 motion for relief from a final judgment, order,
or proceeding, do not toll the deadline for an appeal.

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