Watson v. USA

Filing 8

ORDER. For the reasons explained in the attached Memorandum & Order, the Government's Motion to Dismiss (Doc. 4) is DENIED and Petitioner's Motion to Amend (Doc. 7), which the Court construes as a Motion to Supplement, is GRANTED< /b>. Petitioner is DIRECTED to file a Supplement to his Motion under § 2255 on or before March 7, 2024. The Government is DIRECTED to file a Response to the initial Motion and Supplement to that Motion on or before April 8, 2024. Petitioner shall then have until May 8, 2024, to file a Reply. Signed by Judge David W. Dugan on 2/5/2024. (jnh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DINISH L. WATSON,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 3:23-cv-1800-DWD

MEMORANDUM & ORDER
DUGAN, District Judge:
Before the Court is the Government’s Motion to Dismiss (Doc. 4) Petitioner’s
Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1).
Petitioner has also filed a Motion to Amend the § 2255 Motion (Doc. 7). As explained
below, the Motion to Dismiss is DENIED and the Motion to Amend, construed as a
Motion to Supplement Petitioner’s initial Motion under § 2255, is GRANTED.
On April 27, 2022, Petitioner was sentenced to terms of imprisonment of 360
months for producing child pornography (18 U.S.C. § 2251 (a) and (e)) and 120 months
for possessing a firearm as a felon (18 U.S.C. § 922(g)(1)), which were to run concurrently.
See U.S. v. Watson, No. 21-cr-30031, Docs. 4 & 45 (S.D. Ill.); (Doc. 1, pg. 1). Petitioner did
not directly appeal, as “my plea prohibits me from filing an appeal.” (Doc. 1, pgs. 2-3). 1
On May 30, 2023, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255 (Doc. 1). First, Petitioner argues he received ineffective assistance

1Petitioner

initially filed a Notice of Appeal. (Doc. 4, pg. 3); Watson, No. 21-cr-30031, Doc. 49 (S.D.
Ill. May 2, 2022). The appeal was later dismissed on his own Motion. See id. at Doc. 61-1 (Sept. 12, 2022).

of counsel “because the government and counsel knowingly conspired…[to] breach the
plea agreement…when the plea agreement signed by all the parties supported…a
sentence of 20 years…[and] at sentencing Mr. Watson received 30 years.” (Doc. 1, pg. 4).
Second, on this same basis, Petitioner alleges prosecutorial misconduct. (Doc. 1, pg. 5).
He seeks a new sentence of 20 years of imprisonment. (Doc. 1, pg. 12).
On August 8, 2023, the Court found the Motion survived a preliminary review
under Rule 4 of the Rules Governing Section 2255 Proceedings in the United States
District Courts. (Doc. 3). Thus, the Court set a briefing schedule on the Motion. (Doc. 3).
The Government filed a Motion to Dismiss (Doc. 4) on August 29, 2023. (Doc. 4).
The Government argues Petitioner, in his Plea Agreement, agreed, absent narrow
exceptions, not to appeal or collaterally attack his conviction or sentence. (Doc. 4, pg. 1).
In the Government’s view, the waiver of the right to appeal or collaterally attack his
conviction or sentence applies notwithstanding the fact that Petitioner frames his claims
as ineffective assistance of counsel. (Doc. 4, pgs. 1, 4-5). The Government states Petitioner
“alleges a breach of the plea agreement, not ineffective assistance of counsel, and
accordingly, it is barred by his appeal and collateral attack waiver.” (Doc. 4, pg. 5).
More specifically, the Government argues Petitioner’s waiver was knowingly and
voluntarily made on the advice of experienced counsel, the terms of the Plea Agreement
were explained and addressed by the Court at the Plea Hearing, and the Government
committed no material breach of the Plea Agreement. (Doc. 4, pgs. 4-5). Indeed, the
Government notes it upheld its obligations under the Plea Agreement by recommending

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a sentence at the low end of the guideline range to the Court. (Doc. 4, pg. 5). As such, the
Government is aware of no reason that the waiver is unenforceable. (Doc. 4, pg. 5).
Regardless of the aforementioned waiver, though, the Government argues
Petitioner’s claims are “easily refuted by the record.” (Doc. 4, pg. 5). Again, the
Government notes it recommended a low-end sentence to the Court, as required by the
Plea Agreement, and that was the sentence actually imposed by the Court. (Doc. 4, pg. 5).
Petitioner did not initially respond to the Motion to Dismiss. Therefore, on October
13, 2023, the Court ordered Petitioner to file a Response on or before November 13, 2023.
(Doc. 5). Petitioner did so. (Doc. 6). In that Response, Petitioner argues he was misled by
his attorney, who allegedly advised Petitioner that he would only receive a 20-year
sentence if he signed the Plea Agreement. (Doc. 6, pgs. 2-3). Petitioner clarifies:
If…[I] knew the government and counsel were going to mislead…and
induc[e] [me]…[in]to signing a plea agreement, on a promise…for…a
sentencing recommendation of a sentence of 20 years imprisonment, and
then turn around and give…a plea agreement[] that supports…360-life,
noting that the statutory maximum was 480 month’s [imprisonment], it
should be clear to the Court[] that Mr. Watson[] was misl[ed] by his
counsel[] and the government.
(Doc. 6, pg. 3).
In short, Petitioner argues he was misled, and induced into entering the plea
agreement, because it was impossible for him to receive a 20-year sentence in light of the
guideline range. (Doc. 6, pg. 5). Petitioner indicates he was prejudiced by his attorney’s
ineffectiveness because he was not apprised of the true guideline range or the collateral
consequences of the guilty plea. (Doc. 6, pg. 4). Also, if not for that ineffectiveness,
Petitioner indicates he would have proceeded to trial. (Doc. 6, pg. 5).
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In light of these arguments, the Court briefly recounts the relevant terms of
Petitioner’s Plea Agreement, which was signed by Petitioner, his attorney, and the
Government. See Watson, No. 21-cr-30031, Doc. 33 (S.D. Ill. Nov. 10, 2021). By signing the
Plea Agreement, Petitioner “certifie[d] having read it (or that it has been read to…[him]
in a language…[he] understands), [he] has discussed the terms of th[e] Plea Agreement
with defense counsel and fully understands its meaning and effect.” Id. at pg. 14.
As to the Advisory Sentencing Guidelines, the Plea Agreement, in part, provides:

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Id. at pg. 3.
Further, as to the recommendations to the Court, the Plea Agreement states:

Id. at pg. 7.
Finally, with respect to Petitioner’s waiver of rights, the consequences of the guilty
plea, and the waiver of appeal, the Plea Agreement, in pertinent part, provides:

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Id. at pgs. 10-11; (Doc. 4, pg. 2).
Now, it is generally true that waivers of the right to directly appeal or collaterally
attack a conviction or sentence are enforceable. See U.S. v. Emerson, 349 F.3d 986, 988 (7th
Cir. 2003) (citing U.S. v. Kratz, 179 F.3d 1039, 1041 (7th Cir. 1999)); see also U.S. v. Mason,
343 F.3d 893, 894-95 (7th Cir. 2003) (“A waiver of appeal even in a criminal case is
normally valid and binding.”). However, a waiver does not always foreclose review.
See Mason, 343 F.3d at 895 (quoting U.S. v. Sines, 303 F.3d 793, 798 (7th Cir. 2002)). The
terms of a waiver must be unambiguous, and it must be knowingly and voluntarily made
by the defendant. See Emerson, 349 F.3d at 988 (quoting U.S. v. Woolley, 123 F.3d 627, 632
(7th Cir. 1997)). Further, the plea agreement containing the waiver may preserve issues
for appeal, be unenforceable due to a material breach by the government, or itself be the
product of ineffective assistance of counsel. See Mason, 343 F.3d at 895 (citing Woolley, 123
F.3d at 632; U.S. v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002); U.S. v. Keresztury, 293 F.3d
750, 759-60 (5th Cir. 2002)); Diekemper v. U.S., No. 11-cv-154, 2013 WL 811471, *4, 6 (S.D.
Ill. March 5, 2013); see also Sines, 303 F.3d at 798 (“A defendant does not lose the right to

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pursue a claim that relates directly to the negotiation of the waiver, such as a claim that
the waiver was involuntarily made, was based on an impermissible factor such as race,
exceeds the statutory maximum, or was made without effective assistance of counsel.”).
Relevantly, within the bounds of reasonableness and prevailing professional
norms, counsel is required to advise a client on the pros and cons of a plea agreement.
See Johnson v. U.S., No. 15-cv-1070, 2017 WL 1509096, *3 (S.D. Ill. Aug. 27, 2017) (citing
Padilla v. Kentucky, 559 U.S. 356, 366-67 (2010)); U.S. v. Ramirez-Fuentes, No. 13-cv-495,
2016 WL 1162369, *1 (N.D. Ind. March 24, 2016). The familiar analysis from Strickland v.
Washington applies to claims of ineffective assistance of counsel in this context. See 466
U.S. 668, 687 (7th Cir. 1984); Johnson, 2017 WL 1509096 at *3; Ramirez-Fuentes, 2016 WL
1162369 at *1; Ramirez v. U.S., No. 12-cv-107, 2014 WL 6617389, *4-6 (N.D. Ind. Nov. 21,
2014). The Court notes, though, “[s]o long as counsel’s advice on a plea was ‘within the
range of competence demanded of attorneys in criminal cases’ the plea can stand as
voluntary and intelligent.” See Johnson, 2017 WL 1509096 at *3 (quoting Hill v. Lockhart,
474 U.S. 52, 56 (1985)); Ramirez v. U.S., No. 12-cv-107, 2014 WL 6617389, *4-6 (N.D. Ind.
Nov. 21, 2014) (noting “even a gross mischaracterization of the sentencing consequences
of a plea is not [necessarily] proof of constitutional deficiency”). Further, to show
prejudice in this context, Petitioner must show that but for counsel’s deficient
performance, he would not have pled guilty. See Johnson, 2017 WL 1509096 at *3 (quoting
Galbraith v. U.S., 313 F.3d 1001, 1008 (7th Cir. 2002)); Ramirez, 2014 WL 6617389 at *4 (“The
Seventh Circuit has ‘stated many times that a mere allegation by the defendant that he
would have insisted on going to trial is not sufficient to establish prejudice.”);
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U.S., No. 15-cv-243, 2015 WL 5782343, *8 (S.D. Ill. Oct. 5, 2015) (“With regard to prejudice,
a petitioner must come forward with objective evidence demonstrating a reasonable
probability that, but-for counsel’s advice, the petitioner would not have accepted the
plea.”). During this analysis, the Court presumes that an attorney’s conduct is reasonably
proficient. See Johnson, 2017 WL 1509096 at *3 (quoting Galbraith, 313 F.3d at 1008).
Here, the Court declines to accept the Government’s argument that Petitioner’s
grounds for relief are insufficiently connected to ineffective assistance of counsel, or to
potential breaches of the plea agreement, such that the Court should dismiss Petitioner’s
§ 2255 Motion without full briefing. Notwithstanding the Government’s view of the
merits of Petitioner’s arguments, or the fact that Petitioner may face an “uphill battle” in
the relevant analysis, the Court cannot ignore the heart of his grounds for relief on this
procedural posture, namely, that ineffective assistance of counsel caused an erroneous
belief that the plea agreement would only result in a sentence of 20 years of
imprisonment. (Docs. 1, pgs. 4-5; 6, pgs. 3-5). In light of the fact that Petitioner’s Plea
Agreement expressly states “defendant’s waiver of the right to appeal or bring a collateral
attack does not apply to a claim that Defendant received ineffective assistance of
counsel,” and the fact that Petitioner’s grounds for relief reasonably invoke the case law
cited above, the Court finds the prudent course is to proceed to a full briefing. See Watson,
No. 21-cr-30031, Doc. 33, pgs. 10-11; (Doc. 4, pg. 2); see also Vassen, 2015 WL 5782343 at *8
(noting, due to the petitioner’s assertion in response to the government’s motion to
dismiss that a waiver of the right to appeal was unenforceable because the plea agreement

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itself was the product of ineffective assistance of counsel, the court “out of an abundance
of caution” denied the motion to dismiss and directed the government to respond).
This is especially so where, at this stage, the parties have not adequately provided,
or even discussed, the portions of the record relevant to the Plea Agreement and change
of plea hearing, as is critical in these types of cases. (Doc. 3) (stating, in part, “[t]he
Government shall, as part of its response, attach all relevant portions of the record”);
see also Manning v. U.S., No. 15-cv-1175, 2016 WL 1535775, *5 (S.D. Ill. April 15, 2016)
(finding, based on counsel’s affidavit, the plea agreement, the stipulation of facts, and the
plea colloquy, counsel properly described the sentencing guideline process to the
petitioner and the petitioner understood the plea, where, inter alia, the petitioner’s own
statements at the change of plea hearing belied his arguments, the petitioner
acknowledged reading the plea agreement and stipulation of facts, the court reviewed
those documents with the petitioner to ensure understanding, and the court noted its
sentence could be different from that stated in the plea agreement); Ramirez, 2014 WL
6617389 at *4, 7 (finding the petitioner failed to support an ineffective assistance of
counsel claim, where, inter alia, he previously assented to and expressed an
understanding of the terms of the plea agreement in that document itself and at the
change of plea hearing); Rush v. U.S., 999 F. Supp. 2d 1104, 1111-12 (S.D. Ill. 2013) (finding
allegations of ineffective assistance of counsel, connected to the negotiation of a
sentencing agreement, were at odds with the statements the petitioner made under oath
at the change of plea hearing); Diekemper, 2013 WL 811471 at *5-7 (rejecting ineffective
assistance of counsel claims, where, inter alia, the petitioner’s statements during his
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change of plea hearing “clearly illustrate[d]” that he knowingly and voluntarily entered
the plea agreement, the plea agreement indicated the court would determine the
guideline sentencing range, and the petitioner’s attorney’s affidavit “paint[ed] a very
different picture” than the petitioner’s claims); Vassen, 2015 WL 5782343 at *8-9 (finding
ineffective assistance of counsel claims were without merit or waived, where, inter alia,
the record “utterly refute[d]” any claim that the guilty plea was not knowing or voluntary
in light of the court’s plea colloquy, the transcript revealed the petitioner “carefully
examined” the plea agreement and “fully grasped” the rights given up, the petitioner
indicated he discussed these matters with his attorney and was satisfied with his
representation, and the petitioner’s attorney’s affidavit detailed the time spent discussing
the matters with the petitioner); Lewis v. U.S., No. 10-cv-580, 2011 WL 2420375, *7-13 (S.D.
Ill. June 11, 2011) (rejecting claims of ineffective assistance of counsel, where, inter alia,
the plea agreement stated the petitioner was “fully satisfied” with the representation of
counsel and he “knowingly and voluntarily waive[d] his right to contest any aspect of his
conviction and sentence,” the petitioner indicated he read the plea agreement and
discussed it with counsel before signing, and these events were confirmed by counsel’s
affidavit and the petitioner’s statements at the change of plea hearing). Proceeding to a
full briefing will serve these ends. Therefore, the Motion to Dismiss is DENIED.
Finally, under Federal Rule of Civil Procedure 15, Petitioner seeks to amend his
Motion under § 2255 for the sole purpose of discussing the Supreme Court’s decision in
Blackledge v. Allison, 431 U.S. 63 (1977). In light of the purpose of this request, the Court
construes the Motion to Amend as a Motion to Supplement the initial Motion under
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§ 2255. So construed, the Motion at Doc. 7 is GRANTED. Petitioner is DIRECTED to file
a Supplement to his Motion under § 2255 on or before March 7, 2024. The Government
is DIRECTED to file a Response to the initial Motion and Supplement to that Motion on
or before April 8, 2024. Petitioner shall then have until May 8, 2024, to file a Reply.
SO ORDERED.
Dated: February 5, 2024

s/ David W. Dugan

__________________________
DAVID W. DUGAN
United States District Judge

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