Pelate v. USA

Filing 2

MEMORANDUM AND ORDER, Petitioner Pattsy S. Pelate's Motion (Doc. 1 ) to Vacate, Set Aside or Correct her sentence pursuant to 28 U.S.C. § 2255 is DENIED. Signed by Judge J. Phil Gilbert on 9/12/2016. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PATTSY S. PELATE,
Petitioner,
v.

Case No. 16-cv-00999 - JPG

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Pattsy S. Pelate's Motion (Doc. 1) to
Vacate, Set Aside or Correct her sentence pursuant to 28 U.S.C. § 2255. For the following
reasons, the Court denies petitioner’s motion.
1. Background.
On October 24, 2013, petitioner entered a guilty plea to one count of conspiracy to
manufacture methamphetamine pursuant to a plea agreement. USA v. Pelate, 13-cr-40066, Docs.
49 & 52.

She was sentenced on February 13, 2014, to the Bureau of Prisons for a term of 84

months, supervised release for a term of four years, and a fine of $20.00. Id. at Doc. 69.
2. Analysis.
The Court must grant a § 2255 motion when a defendant’s “sentence was imposed in violation
of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However, “[h]abeas corpus
relief under 28 U.S.C. § 2255 is reserved for extraordinary situations.” Prewitt v. United States, 83
F.3d 812, 816 (7th Cir. 1996). “Relief under § 2255 is available only for errors of constitutional
or jurisdictional magnitude, or where the error represents a fundamental defect which inherently
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results in a complete miscarriage of justice.” Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir.
1994) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if
“the motion and the files and records of the case conclusively demonstrate that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th
Cir. 2009).

An evidentiary hearing was not conducted as the record demonstrated that the

petitioner is not entitled to relief.
A defendant may waive her right to collaterally attack her sentence under § 2255 and the
Court notes that the petitioner’s plea agreement contains such a waiver. Jones v. U.S., 167 F.3d
1142, 1144-45 (7th Cir. 1999). The Court will uphold and enforce a collateral attack waiver
unless the plea agreement was involuntary, the sentence exceeded the statutory maximum
sentence, or the defendant received ineffective assistance of counsel in connection with
negotiating the plea agreement. Id.; see Keller v. U.S., 657 F.3d 675, 681 (7th Cir. 2011).
Further, “[t]o bar collateral review, the plea agreement must clearly state that the defendant
waives his right to collaterally attack his conviction or sentence in addition to waiving his right to
a direct appeal.” Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011)(italic in original).
Petitioner’s plea agreement contains the following provisions:
2. The Defendant is aware that Title 18, Title 28, and other provisions of the United
States Code afford every defendant limited rights to contest a conviction and/or
sentence through appeal or collateral attack. However, in exchange for the
recommendations and concessions made by the United States in this plea agreement,
the Defendant knowingly and voluntarily waives his 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

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minimum, whichever is greater), the Defendant reserves the right to appeal the
reasonableness of the sentence. The Defendant acknowledges that in the event such an
appeal is taken, the Government reserves the right to fully and completely defend the
sentence imposed, including any and all factual and legal findings supporting the
sentence, even if the sentence imposed is more severe than that recommended by the
Government.
3. Defendant's waiver of his right to appeal or bring collateral challenges shall not
apply to: 1) any subsequent change in the interpretation of the law by the United States
Supreme Court or the United States Court of Appeals for the Seventh Circuit that is
declared retroactive by those Courts and that renders the defendant actually innocent of
the charges covered herein; and 2) appeals based upon Sentencing Guideline
amendments that are made retroactive by the United States Sentencing Commission
(see U.S. S. G. § 1 B 1.10). The Government reserves the right to oppose such claims
for relief.

USA v. Pelate, 13-cr-40066, Doc. 53, paragraphs 2 & 3.
Petitioner’s plea agreement indicates that she waived her collateral attack rights in addition
to waiving her right to a direct appeal. Further, the petitioner does not allege that her sentence
was imposed in excess of the Sentencing Guidelines or that there has been any subsequent change
in the law.1
Petitioner alleges three grounds for her § 2255 motion. First, she alleges that she is
entitled to Rule 35 reduction.

Second, she alleges that the amount of pseudoephedrine2

1 Petitioner does note that she received a sentence reduction pursuant to18 U.S.C. § 3582(c) based on
United States Sentencing Guideline Amendment 782 and therefore has no appeal right based upon
retroactive Sentencing Guideline amendments.
2 The motion states, “sudaphedrine” which the Court assumes is a misspelling of pseudoephedrine.

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attributed to her for sentencing was in excess of what she actually had possession of and that the,
“log got miscalculated.” Finally, petitioner alleges ineffective assistance of counsel in that:
a.

“lawyer would not ask for reduction at sentencing.”

b.

“will not respond to letters or calls.”

c.

“did not fight on my behalf for pill log when I raised this issue to him.”

None of the above grounds raise the issue that the petitioner’s plea agreement was involuntary,
that her sentence exceeded the statutory maximum sentence, or that she received ineffective
assistance of counsel in connection with negotiating the plea agreement. Even if the Court could
construe an argument of ineffective assistance of counsel with regard to the amount of
pseudoephedrine stated in the plea agreement, there is nothing to indicate that the petitioner based
her decision to enter the plea agreement based on the amount of pseudoephedrine or that a change
in the amount located on the “pill log” would change the amount of pseudoephedrine as there is no
indication in the plea agreement that the drug amount was based on a “pill log.” Finally,
petitioner motion states that her attorney has not contacted her or returned her calls, “since
sentencing.” There is no indication that her counsel failed to maintain contract during the
negotiation of the plea agreement.
The fact that the petitioner, “didn’t like lawyers job done” is not a basis for ineffective
assistance of counsel nor is it a basis for the Court to not uphold and enforce petitioner’s collateral
attack waiver.

As such, petitioner’s motion must be denied.

The Court notes that the petitioner’s § 2255 motion states there is a Rule 35 motion that the
Court has not ruled upon.

At this time, there are no pending motions in USA v. Pelate,

13-cr-40066.
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3. Certificate of Appealability.
Having denied Petitioner's motion, the Court must grant or deny a certificate of
appealability with regard to her § 2255 motion. See Rule 11(a) of the Rules Governing Section
2255 Proceedings for the United States District Courts; 28 U.S.C. § 2253(c). Section 2253(c)(2)
provides that a certificate of appealability may issue only if a petitioner has made a substantial
showing of the denial of a constitutional right.

Ms. Pelate has made no such showing.

Therefore, the Court denies a certificate of appealability. Pursuant to Rule 11(a), Ms. Pelate may
not appeal the denial of a certificate of appealability, but she may seek a certificate from the Court
of Appeals for the Seventh Circuit.
4. Conclusion.
Based on the foregoing, petitioner Pattsy S. Pelate's Motion (Doc. 1) to Vacate, Set Aside
or Correct her sentence pursuant to 28 U.S.C. § 2255 is DENIED.
IT IS SO ORDERED.
DATED: 9/12/2016
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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