Kennedy v. Warden

Filing 16

ORDER DISMISSING CASE with prejudice and GRANTING 8 MOTION to Dismiss Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 USC 2241 filed by Warden. Further, the Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 11/21/2017. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUSTIN WESLEY KENNEDY,
Petitioner,
v.

No. 3:17-cv-00161-DRH-CJP

Warden,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Justin Wesley Kennedy (Petitioner), filed a petition for writ of
habeas corpus under 28 U.S.C. § 2241, challenging the enhancement of his
sentence as a career offender under U.S.S.G. § 4B1.1. (Doc. 1). 1 He purports to
rely on Mathis v. United States, 136 S. Ct. 2243 (2016). Now before the Court is
Respondent’s Motion to Dismiss Petitioner’s Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241. (Doc. 8). Respondent argues the petition must be
dismissed because petitioner waived his right to file a collateral attack. Petitioner
opposes the motion at Doc. 11.
Relevant Facts and Procedural History
In 2010, Petitioner pleaded guilty to one count of Conspiracy to
Manufacture a Substance Containing a Detectable Amount of Methamphetamine
in the Eastern District of Missouri. United States v. Kennedy, No. 1:09-cr-170CEJ.
1

The Court uses the document, exhibit and page numbers assigned by the CM/ECF filing system.

The District Court applied the career-offender enhancement pursuant to the
United States Sentencing Guidelines (“USSG”) at § 4B1.1, based on Petitioner’s
prior convictions for attempted manufacture of methamphetamine and possession
of ephedrine with intent to manufacture methamphetamine.

(Doc. 1-1, p. 5).

Consequently, Petitioner’s offense level increased from 23 to 29 and his guideline
range increased from 91-115 months to 151-188 months incarceration. (Doc. 11, pp. 5-6).

He ultimately received a sentence of 151 months, three years of

supervised release, and a mandatory special assessment of $100. (Doc. 1-1, p. 7).
Petitioner entered into a plea agreement with the Government in relation to
his guilty plea.

(Doc. 8-1).

The agreement contained a waiver of the right to

appeal or file a collateral attack:
(1) Appeal: The defendant has been fully apprised by defense counsel of the
defendant’s rights concerning appeal and fully understands the right to
appeal the sentence under Title 18, United States Code, Section 3742.
(a) Non-Sentencing Issues: In the event the Court accepts the plea, as part
of this agreement, both the defendant and the government hereby waive
all rights to appeal all non-jurisdictional issues including, but not
limited to, any issues relating to pre-trial motions, hearing and discovery
and any issues relating to the negotiation, taking or acceptance of the
guilty plea or the factual basis for the plea.
(b) Sentencing Issues: Both the defendant and the government hereby waive
all rights to appeal all sentencing issues, including any issues related to
the determination of the Total Offense Level, the Criminal History
Category and Career Offender status.
(2) Habeas Corpus: The defendant acknowledges being guilty of the
crime(s) to which a plea is being entered, and further states that neither
defense counsel nor the government have made representations which
are not included in this document as to the sentence to be imposed. The
defendant further agrees to waive all rights to contest the conviction or
sentence in any post-conviction proceeding, including one pursuant to

Title 28, United States Code, Section 2255, except for claims of
prosecutorial misconduct or ineffective assistance of counsel at the time
of sentencing.
(Doc. 8-1).
Petitioner directly appealed his conviction, unsuccessfully. (Doc. 8-7). He
then filed a § 2255 petition arguing ineffective assistance of counsel, which the
District Court denied. (Doc. 8-10).
Analysis
Petitioner relies on Mathis v. United States, 136 S. Ct. 2243 (2016) to argue
his prior drug convictions do not qualify as controlled substance offenses for
purposes of the career offender enhancement under U.S.S.G. § 4B1.2.

It is

unnecessary to consider the substantive merits of his argument because the
waiver in Petitioner’s plea agreement bars his collateral attack.
There is no doubt that a plea agreement may include a valid waiver of the
right to appeal and to file a collateral attack, and that such waivers are generally
enforceable, with limited exceptions. Solano v. United States, 812 F.3d 573, 577
(7th Cir. 2016). The limited exceptions are where the plea agreement itself was
involuntary, the defendant argues ineffective assistance of counsel with regard to
the negotiation of the plea, the sentencing court relied on a constitutionally
impermissible factor such as race, or the sentence exceeded the statutory
maximum. Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011). A waiver
of the right to bring a collateral attack on a conviction or sentence bars a § 2241
petition; the waiver does not make the remedy afforded by § 2255 inadequate or
ineffective so as to open the door to a § 2241 petition. Muse v. Daniels, 815 F.3d

265, 266 (7th Cir. 2016).
In response to Respondent’s Motion to Dismiss, Petitioner attacks the
waiver’s validity on several bases. He asserts his counsel was ineffective in: (1)
negotiating the plea; (2) allowing him to enter into the agreement unknowingly or
involuntarily; (3) failing to highlight a Department of Justice (DOJ) memorandum
to federal prosecutors which rendered the waiver null and void; and, (4) failing to
raise the point that upholding his sentence would result in a miscarriage of
justice.

1. The Waiver was Entered Into Knowingly and Voluntarily
An appeal waiver is valid only if it was entered into knowingly and
voluntarily.

United States v. Woolley, 123 F.3d 627, 632 (7th Cir. 1997).

Petitioner argues he did not enter into the waiver knowingly because the District
Court and the parties could not anticipate the ruling in Mathis.

The Seventh

Circuit has “consistently rejected arguments that an appeal waiver is invalid
because the defendant did not anticipate subsequent legal developments.” United

States v. McGraw, 571 F.3d 624, 631 (7th Cir. 2009). The Seventh Circuit views
plea agreements through the lens

of contract law, albeit with certain

Constitutional considerations. United States v. Bownes, 405 F.3d 634, 636 (7th
Cir. 2005). In a contract, and equally in a plea agreement, a person binds himself
to do something in exchange for some benefit, and assumes the risk of future
changes in circumstances. Id. Accordingly, the fact that Petitioner, here, may
have struck what turned out to be a bad bargain does not render his plea

agreement invalid.

The record otherwise demonstrates the appeal waiver was made knowingly
and voluntarily. The Seventh Circuit has held “if there is express waiver of appeal
language in the plea agreement and the agreement as a whole was accepted
following a Rule 11 colloquy, we have held the waiver was knowing and
voluntary.”

United States v. Agee, 83 F.3d 882, 886 (7th Cir. 1996). During

Petitioner’s plea colloquy, the court gave Petitioner a copy of the plea agreement
and asked whether Petitioner reviewed the document with his lawyer, read it, and
understood it. Petitioner responded that he did, and that all of his questions had
been answered to his satisfaction. (Doc. 8-2, p. 10). Moreover, Petitioner signed
the plea agreement that contains a paragraph entitled “Voluntary Nature of the
Plea and the Plea Agreement, Recommendations and Stipulations,” which
acknowledges Petitioner entered into the agreement voluntarily and knowingly.
(Doc. 8-1, pp. 14-15).
The transcript from the trial court’s proceedings demonstrates Petitioner’s
plea agreement, and the appeal waiver contained therein, was entered into
knowingly and voluntarily. A subsequent change in law does not invalidate a plea
agreement and, thus, the waiver withstands scrutiny unless Petitioner can show
his counsel was ineffective, the sentencing court relied on an unconstitutional
factor, or the sentence exceeded the statutory maximum.
2. Petitioner Received Effective Assistance of Counsel

Petitioner next asserts the waiver does not bar his collateral attack because
his counsel was ineffective. A valid waiver of appeal does not preclude judicial
review of whether the agreement, itself, was the product of ineffective assistance of
counsel. United States v. Jemison, 237 F.3d 911, 916 n.8 (7th Cir. 2001). To
establish ineffective assistance of counsel, a petitioner must demonstrate his
counsel’s performance “fell below an objective standard of reasonableness,”

Strickland v. Washington, 466 U.S. 668, 688 (1984), and “but for counsel’s
unprofessional errors, the result of the proceeding would have been different,” Id.
at 694. In other words, a petitioner must show deficiency and resulting prejudice.
Petitioner, here, asserts his counsel was ineffective because he failed to
inform Petitioner “of the relevant circumstances and likely consequences of
pleading guilty or proceeding to trial,” and “failed to provide [Petitioner] with an
estimated range of the penalties that could result from a trial conviction.” (Doc.
11, p. 7).
Petitioner’s claim is procedurally barred because he has already raised the
issue of ineffective assistance of counsel, unsuccessfully, in his initial § 2255
petition.

See Doc. 8-9.

Nonetheless, Petitioner’s claim remains substantively

defective. Petitioner does not set forth a cogent argument connecting his counsel’s
alleged deficiencies to a resulting prejudice. He asserts his counsel did not fully
inform him of the consequences of pleading guilty, yet admits he would have
pleaded guilty regardless of his counsel’s advice.
Instead, Petitioner asserts he was prejudiced because, but for his counsel’s

deficient performance, he would have foregone the plea agreement, pleaded guilty,
and received the same sentence while retaining the right to appeal. This argument
is unsupported and conclusory.

“[S]elf-serving speculation will not sustain an

ineffective assistance claim,” United States v. Ashimi, 932 F.2d 643, 650 (7th Cir.
1991), and Petitioner’s argument for ineffective assistance of counsel thus fails.

3. Petitioner Fails to Identify a Valid Ground for Invalidating the Waiver
Petitioner sets forth two final bases for invalidating the waiver, which the
Seventh Circuit has not recognized as grounds for escaping an appeal waiver.
Petitioner

asserts

the

career

offender

enhancement

resulted

in

a

“miscarriage of justice,” citing Narvaez v. United States, 674 F.3d 621, 629 (7th
Cir. 2011). Narvaez recognized that an erroneous career offender enhancement
may, in certain circumstances, “constitute[] a miscarriage of justice” and warrant
habeas relief. However, the petitioner in Narvaez did not waive his right to appeal
and the Seventh Circuit did not articulate an escape hatch for waivers based on
its holding.
Petitioner also argues a DOJ memorandum renders the waiver null and
void.

In October 2014, Deputy Attorney General James Cole issued a

Memorandum to all federal prosecutors, which stated, in part, “Federal
prosecutors should no longer seek in plea agreements to have a defendant waive
claims of ineffective assistance of counsel whether those claims are made on
collateral attack or, when permitted by circuit law made on direct appeal.” (Doc.
11, p. 6).

A DOJ policy change is not a recognized exception to an appeal waiver that
would release Petitioner from his agreement. Moreover, DOJ policies, such as the
one at issue here, are internal guidelines for the exercise of prosecutorial
discretion; they do not create a substantive right for a party to enforce and are not
subject to judicial review. United States v. Mitchell, 778 F.2d 1271, 1276 (7th
Cir. 1985). Finally, Petitioner never waived future claims of ineffective assistance
of counsel. In fact, his appeal waiver specifically preserved those claims. See
Doc. 8-1, pp. 3-4.
Conclusion
Petitioner entered a plea agreement knowingly and voluntarily, in which he
waived his right to appeal. The Seventh Circuit recognizes narrow exceptions to
enforcing an appeal waiver, but Petitioner has failed to demonstrate that any
apply here. Thus, the waiver commands dismissal of Petitioner’s collateral attack
of his sentence under Mathis.
Based on the foregoing, respondent’s Motion to Dismiss (Doc. 8) is
GRANTED. Petitioner Justin Wesley Kennedy’s Writ of Habeas Corpus (Doc. 1) is
DISMISSED WITH PREJUDICE.
The Clerk of Court shall enter judgment in favor of Respondent.
IT IS SO ORDERED.

Digitally signed by
Judge David R. Herndon
Date: 2017.11.21
15:30:39 -06'00'
UNITED STATES DISTRICT JUDGE

Notice
If petitioner wishes to appeal the denial of his petition, he may file a notice
of appeal with this court within 60 days of the entry of judgment. Fed. R. App. P.
4(a)(B).

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).
Petitioner is further advised that, if he intends to file a motion pursuant to
Federal Rule of Civil Procedure 59(e), that motion 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 60-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.
It is not necessary for petitioner to obtain a certificate of appealability from
this disposition of his § 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th
Cir. 2000).