Reeves v. USA

Filing 6

ORDER granting 3 Motion to Dismiss. The Court DISMISSES with prejudice Reeves' 28 U.S.C Section 2255 petition and declines to issue a certificate of appealability. Further, the Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 3/19/2018. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ALFRED VERNON REEVES,
Petitioner,

No. 17-1331-DRH

vs.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM and ORDER
HERNDON, District Judge:
I. Introduction, Background and Procedural History
Now before the Court is the government’s January 16, 2018 motion
to dismiss Reeves’s motion for relief pursuant to 28 U.S.C. § 2255 (Doc. 3).
Specifically, the government contends that the Court should dismiss
Reeves’s § 2255 motion because Reeves waived his right to bring such a
motion in his negotiated plea agreement with the government in his
criminal case. As of this date, Reeves has not responded to the motion to
dismiss despite being warned twice by the Court of the consequences of

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failing to respond.1 Pursuant to Local Rule 7.1(c), the Court considers the
failure to respond as an admission of the merits of the motion and grants
the motion to dismiss.
On December 16, 2015, the grand jury returned a superseding
indictment charging Reeves of unlawful distribution of heroin (Count 1) and
conspiracy to distribute, and possess with intent to distribute, heroin
(Count 2). See United States v. Reeves, 15-CR-30056-DRH; Doc. 34. On
May 6, 2016, Reeves pled guilty to the charges. Id. at Docs. 82, 83 & 84.
On October 14, 2016, the Court sentenced Reeves to 67 months, on each
count to be served concurrently and judgment reflecting the same was
entered. Id. at Docs. 111 & 113. Reeves did not appeal his sentence or
conviction.

During these proceedings, Reeves was represented by court

appointed attorney Paul Sims.
Subsequently, Reeves filed a 28 U.S.C. § 2255 petition on December
11, 2017 (Doc. 1).

Reeves claims that his lawyer was ineffective.

On

December 14, 2017, the Court directed the government to respond to the
motion (Doc. 2). On January 16, 2018, the government filed a motion to
1

On January 16, 2018, the Court issued the following Order: “ORDER re 3 MOTION to
Dismiss Defendant’s Motion for Relief Pursuant to 28 U.S.C. §2255 filed by USA. The
Court DIRECTS Reeves to file a response to the motion to dismiss on or before February
16, 2018. The failure to respond to the motion on or before that date may result in the
Court granting the motion to dismiss and dismissing with prejudice this cause of action.
See Local Rule 7.1(c) (“Failure to timely file a response to a motion, may, in the Court’s
discretion, be considered an admission of the merits of the motion.). Further, based on
the reasons stated in the motion, the Court finds a stay of the proceedings pending the
resolution of the motion to dismiss is warranted.” (Doc. 4). Thereafter on February 22,
2018, the Court entered a similar Order warning Reeves of the failure to respond to the
motion to dismiss and directing Reeves to respond to the motion to dismiss on or before
March 8, 2018 (Doc. 5).

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dismiss arguing that the Court should dismiss Reeves’s motion/petition as
he waived his right to file such a claim. As of this date, Reeves has not
responded to the motion despite the Court warming him twice of his need
to do so. As the motion is ripe, the Court turns to address the merits of the
motion to dismiss.
II. Analysis
The Court agrees with the government that Reeves waived his right to
file this § 2255 petition. Reeves entered into a written plea agreement with
the government for certain benefits.

In exchange for the benefits he

received, he waived his right to a direct appeal and to a collateral attack
under Section 2255. Reeves, 15-30056-DRH, Doc. 84. Specifically, the
plea agreement provides in relevant parts:
1. The United States and Defendant submit that under the
Sentencing Guidelines, after all factors have been
considered, Defendant will have an Offense Level of 31, a
Criminal History of III, a sentencing range of 135-168
months’ imprisonment, and a fine range of $30,000$300,000. The United States and Defendant agree that
these calculations of Offense Level and Criminal History are
not binding on the Court, and that the Court ultimately will
determine the Guideline range after receiving the
Presentence Report and giving both parties opportunity to
comment thereon. Defendant expressly recognizes that,
regardless of the Guideline range found or the sentence
imposed by the Court, Defendant will not be permitted to
withdraw Defendant’s plea of guilty. The United States
agrees to recommend a sentence at the low end of the
Guideline range ultimately found by the Court. The
United States and the Defendant reserve the right to
address the sentencing factors set forth in 18, U.S.C. §
3553(a), but the United States and the Defendant both
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agree not to seek a sentence outside the applicable
guideline range. The Defendant agrees to be bound to a
Guideline recommendation, in part, based upon the fact
that the United States has agreed not to seek a sentencing
enhancement pursuant to 21 U.S.C. § 851. Government
and the Defendant reserve the right to address the
sentencing factors set forth in 18 U.S.C. § 3553(a),
2. The Government specifically reserves the right to argue for,
present testimony, or otherwise support the Probation
Office’s or the Court’s findings as to Offense Level and
Criminal History Category (which may be in excess of the
calculations set forth herein by the Defendant and the
United States). Defendant understands that the Sentencing
Guidelines are advisory only and that the Court has the
discretion to sentence the Defendant anywhere up to the
statutory maximum sentence after consideration of the
Sentencing Guidelines, and the factors set forth in 18
U.S.C. § 3553(a), including the nature and circumstances of
the offense(s) and the criminal history and characteristics
of the Defendant.
1. Defendant fully understands that Defendant has the right to
be represented by counsel, and if necessary, to have the
Court appointed counsel at trial and at every other stage of
the proceeding. Defendant’s counsel has explained these
rights and consequences of the waiver of these rights.
Defendant fully understands that, as a result of the guilty
plea, not trial will occur and that the only action remaining
to be takin in this case is the imposition of the sentence.
4. Defendant understands that by pleading guilty, Defendant is
waiving all appellate issues that might have been available if
Defendant had exercised his right to trial.
5. 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, Defendant knowingly
and voluntarily waives his right to contest any aspect of
his conviction and sentence, including the manner in
which the sentence was determined or imposed, that could
be contested under Title 18 or Title 28, or under any other
provision of federal law, except that if the sentence imposed
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is in excess of the Sentencing Guidelines as determined by
the Court (or any applicable statutory minimum, whichever
is greater), Defendant reserves the right to appeal the
substantive reasonableness of the term of imprisonment.
Defendant acknowledges that in the event such an appeal is
taken, the United States 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
United
States.
Defendant
acknowledges that such an appeal may be considered a
material breach of this Plea Agreement and the United
States reserves the right to take any action it deems
appropriate to have a court declare that Defendant has
materially breached this Plea Agreement.
Defendant is fully satisfied with the representation from
defense counsel. Defendant acknowledges that the United
States has provided complete discovery compliance in this
case. Defendant has reviewed the United States’ evidence
and has discussed the United States’ case, possible
defenses and defense witnesses with defense counsel.
Defendant’s attorney has completely and satisfactorily
explored all areas which Defendant has requested relative
to the United States’ case and possible defenses. Defendant
acknowledges that Defendant has had adequate opportunity
to discuss the potential consequences of Defendant’s plea
with counsel.
Defendant has had all of Defendant’s
questions answered by defense counsel. Defendant agrees
that this Plea Agreement is not the result of any threats,
duress, or coercion. Defendant enters this guilty plea
freely, voluntarily and knowingly, because Defendant is
guilty.
United States v. Reeves, 15-30056-DRH; Doc. 83, ps. 3-12.
The Seventh Circuit has found these types of waivers to be valid. The
Seventh Circuit has held that “a waiver of a right to appeal contained within
a guilty plea is enforceable,” provided that the waiver is knowing and
voluntary. United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir),
cert. denied, 520 U.S. 1281 (1997); United States v. Schmidt, 47 F.3d
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188, 190 (7th Cir. 1995). See also, United States v. Wenger, 58 F.3d 280,
281 (7th Cir.), cert. denied, 116 S.Ct 349 (1995). A waiver will not be
enforced, however, if the district judge relied on impermissible facts in
sentencing (for instance, the defendant’s race or gender) or of the judge
sentenced the defendant in excess of the statutory maximum sentence for
the offense committed.

Feichtinger, 105 F.3d at 1190.

Further, the

Seventh Circuit has found that a waiver of a Section 2255 relief in a plea
agreement is enforceable, and should be treated no differently than the
waiver of a direct appeal. Jones v. United States, 167 F.3d 1142, 1145
(7th Cir. 1999). Indeed the Seventh Circuit has specifically stated that both
statutory and constitutional rights can be waived in a plea agreement. Id. at
1144, United States v. Woolley, 123 F.3d 627, 631-632 (7th Cir. 1997).
See also United States v. Woods, 581 F.3d 531, 534 (7th Cir. 2009);
United States v. Emerson, 349 F.3d 986, 988 (7th Cir. 2003).
The Court finds that the waiver was knowing and voluntary and there
is nothing in the record to demonstrate otherwise. Defendant signed the
plea agreement acknowledging that he was satisfied with defense counsel,
that he discussed his case fully with defense counsel and that his Plea
Agreement was voluntary and knowing and not as a result of threats or
coercion. Also, the Court thoroughly questioned Reeves about these issues

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during his change of plea. See United States v. Reeves, 15-30056-DRH,
Doc. 134, ps. 8-14.2
In addition, for the waiver to be enforceable, Reeves’s sentence had to
be within the maximum provided by the statute of conviction and the
applicable guideline range based upon his relevant conduct. The statutory
mandatory maximum penalty for unlawful distribution of heroin is not
more than 20 years, 21 U.S.C. §§ 841(a)(1) and the statutory mandatory
minimum penalty for conspiracy to distribute and possess with intent to
distribute heroin is not less than 10 years – to life imprisonment, 21 U.S.C.
§ 846; and § 841(b)(1)(C).

In fact, the statutory terms of imprisonment

were outlined in his plea agreement during the change of plea hearing, the
Court informed Reeves of the statutory sentencing ranges and Reeves
acknowledged that he understood.

Based upon the conduct to which

Reeves admitted and others attributed to him in the conspiracy, his
applicable guideline range of imprisonment was 135-168 months, the fine
range was $15,000 – $11,000,000.00, and the supervised release range was
not less than 5 years. The Court sentenced Reeves to 67 months
imprisonment 68 months below the low-end of the sentencing guideline
range. Thus, Reeves received a huge benefit to pleading guilty. There is no
2

Specifically, the following exchange took place between the Court and Reeves:
The Court: So you won't file a direct appeal, you
won't file a 2255, you won't file any kind of a petition
with any court asking that your sentence be changed as long
as I impose a guideline sentence?
THE DEFENDANT: Right.
United States v. Reeves, 15-30056-DRH, Doc. 134, p. 13.

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basis in the record for avoiding this waiver, and the Court neither relied
upon constitutionality impermissible factors in sentencing Reeves nor
sentenced him above the statutory maximum. Thus, the waiver provisions
of Reeves plea agreement are enforceable and Reeves has waived his right to
bring this § 2255 petition.
Reeves’s sentence and conviction are legal. He has not shown that
his sentence was “imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255.
Finally, the Court notes that letting Reeves’s conviction and sentence stand
would not result in a fundamental miscarriage of justice.

Murray v.

Carrier, 477 U.S. 478, 495 (1986).
Under the 2009 Amendments to Rule 11(a) of

THE

RULES GOVERNING

SECTION 2255 PROCEEDINGS, the “district court must issue or deny a
certificate of appealability when it enters a final order adverse to the
applicant.” Thus, the Court must determine whether petitioner’s claims
warrant a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2).
A habeas petitioner does not have an absolute right to appeal a
district court’s denial of his habeas petition; he may appeal only those
issues for which a certificate of appealability have been granted.

See

Sandoval, 574 F.3d at 852. A habeas petitioner is entitled to a certificate

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of appealability only if he can make a substantial showing of the denial of a
constitutional right. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); 28
U.S.C. § 2253(c)(2). Under this standard, petitioner must demonstrate that,
“reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’”
Id. (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Where a district court denies a habeas petition on procedural
grounds, the court should issue a certificate of appealability only if (1)
jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right, and (2) jurists of reason would
find it debatable whether the district court was correct in its procedural
ruling. See Slack, 529 U.S. at 485.
As to petitioner’s claims, the Court finds that reasonable jurists
would not debate that Reeves waived his right to bring a 28 U.S.C. petition.
Reasonable jurists could not debate that the petition should have been
resolved in a different manner. Therefore, the Court declines to certify any
issues for review pursuant to 28 U.S.C. § 2253(c).
III. Conclusion
Accordingly, the Court GRANTS the government’s motion to dismiss
(Doc. 3). The Court DISMISSES with prejudice Reeves’s motion under 28
U.S.C. § 2255 motion to vacate, set aside or correct sentence by person in

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federal custody.

Further, the Court DECLINES to issue a certificate of

appealability. The Court ORDERS the Clerk of the Court to enter judgment
reflecting the same.
IT IS SO ORDERED.

Judge Herndon
2018.03.19
14:26:32 -05'00'
United States District Court

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