Vassen v. USA

Filing 13

ORDER denying 7 Motion to Dismiss. The government is DIRECTED to respond to the petitioners § 2255 petition no later than July 24, 2015. Signed by Judge David R. Herndon on 6/23/2015. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN A. VASSEN,
Petitioner,
vs.

Case No. 15-cv-243-DRH

UNITED STATES OF AMERICA,
Respondent.
ORDER
This matter is before the Court on the government’s motion to dismiss
(Doc. 7) the petitioner, John Vassen’s, § 2255 petition (Doc. 1). For the reasons
discussed herein, the motion to dismiss is DENIED and the government is
DIRECTED to respond to the petitioner’s § 2255 petition no later than July 24,
2015.
BACKGROUND
On October 17, 2013, Vassen pleaded guilty to an information, pursuant to
a plea agreement negotiated with the Government. (Doc. 6). In the plea, Vassen
agreed that, with very limited exceptions, he would neither appeal nor present any
collateral challenge to his conviction or sentence. On February 19, 2014, Vassen
appeared before the District Court for sentencing, at which time he was sentenced
to 24 months’ imprisonment. (Doc. 25) Judgment was entered on February 19,
2014. (Doc. 28). Vassen did not file a direct appeal.
Vassen filed the instant post-conviction petition (Doc. 1), on March 5, 2015.
The original 2255 petition purports to contain three complaints of error. For his

first complaint of error Vassen contends his counsel was ineffective in that he
failed to adequately advise Vassen as to the consequences of pleading guilty. For
his second claim of error Vassen claims his counsel was ineffective in that he
failed to adequately investigate his case because he did not obtain a forensic
account. For his third claim of error Vassen merely states “Will be included in
Supplemental Memorandum.” Vassen filed a supplemental § 2255 memorandum
on March 11, 2015. In this memorandum, Vassen asserts his attorney was
ineffective because he failed to object when Vassen was sentenced in 2014 using
the 2013 Guideline Manual.
The government contends Vassen’s § 2255 petition should be dismissed
because he knowingly and voluntarily waived appellate and post-conviction rights.
The government further contends all three of Vassen’s claims fail to articulate a
cognizable constitutional violation. Finally, as to Vassen’s third claim of error, the
government contends it should be dismissed as untimely.
ANALYSIS
Plea-agreement waivers of the right to appeal and/or collaterally attack a
conviction and sentence are generally upheld and enforced, unless the “plea
agreement was involuntary, the district court ‘relied on a constitutionally
impermissible factor (such as race),’ the ‘sentence exceeded the statutory
maximum,’ or the defendant claims ‘ineffective assistance of counsel in connection
with the negotiation of [the plea] agreement.’” Keller v. United States, 657 F.3d

675, 681 (7th Cir. 2011) (quoting Jones v. United States, 167 F.3d 1142, 1144–
45 (7th Cir. 1999)).
In the instant case, Vassen is asserting ineffective assistance of counsel in
connection with his plea agreement. Accordingly, Seventh Circuit precedent
mandates Vassen be entitled to a collateral attack and for this reason the
government’s motion to dismiss must be DENIED. In denying the government’s
motion to dismiss, the Court makes no finding as to whether Vassen has asserted
cognizable constitutional violations or whether Vassen’s claims were timely filed.
The Court is merely recognizing Vassen has asserted claims of ineffective
assistance of counsel. If these claims are cognizable, the Court cannot preclude
Vassen from pursuing them on grounds of waiver.
CONCLUSION
For the reasons discussed herein, the government’s motion to dismiss is
DENIED. FURTHER, the Court DIRECTS the government to file a response,
addressing the merits of petitioner’s claims for ineffective assistance of counsel,
no later than July 24, 2015. The government may reassert any arguments
pertaining to timeliness at that time.
IT IS SO ORDERED.
Signed this 23rd day of June, 2015.

Digitally signed
by David R.
Herndon
Date: 2015.06.23
15:37:12 -05'00'
United States District Judge