Wilson v. USA
Filing
1
OPINION AND ORDER DENYING defendant's Motion under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, and the defendant is DENIED a Certificate of Appealability. Signed by Judge Theresa L Springmann on 5/29/12. (jcp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
UNITED STATES OF AMERICA
v.
DARNAY D. WILSON
)
)
)
)
)
CAUSE NO.: 1:08-CR-67-TLS
OPINION AND ORDER
This matter is before the Court on Defendant Darnay D. Wilson’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF
No. 51], filed on October 29, 2010, along with a Memorandum of Law in Support [ECF No. 52].
The Government responded on November 29, 2010 [ECF No. 59], and the Defendant filed a
Traverse on January 31, 2011 [ECF No. 60]. The Court has reviewed the Exhibits attached to the
Defendant’s Memorandum of Law in Support, including the document entitled “Sworn
Affidavit” [ECF No. 52 at 43–44].
BACKGROUND
The Defendant, Darnay D. Wilson, was charged with robbing the First Source Bank at
5719 Bluffton Road, Fort Wayne, Indiana, on August 15, 2008, and assaulting and putting the
life of another person in jeopardy by using a dangerous weapon in the commission of the
offense, in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2 (Count 1). The
Government also charged the Defendant with brandishing the dangerous weapon—a shortbarreled shotgun—during the armed bank robbery, in violation of 18 U.S.C. § 924(c) and 18
U.S.C. § 2 (Count 2).
Attorney Robert W. Gevers II represented the Defendant through the trial process.
Attorney Gevers appeared at the Detention and Probable Cause Hearing on August 21, 2008,
where the Defendant waived probable cause and was detained pending trial. The Magistrate
Judge arraigned the Defendant on August 29, 2008, and ordered his continued pretrial detention.
A series of motions by Attorney Gevers followed, including two Motions to Continue, and a
Motion to Appoint Investigator, all of which were granted. Then on March 16, 2009, the parties
entered a Plea Agreement [ECF No. 27], and the Court set a change of plea hearing for March
18.
In the Plea Agreement, the Defendant stated he believed Attorney Gevers was fully
informed as to the facts and circumstances concerning the matters in the Indictment. He stated
his detailed understanding of the rights he was waiving by pleading guilty. He demonstrated an
understanding that the Court would determine an appropriate sentence taking into account,
among other factors, the applicable U.S. Sentencing Guidelines. The Defendant agreed to plead
guilty to both Counts 1 and 2 of the Indictment because he was in fact guilty of all offenses
charged in those Counts. He stated his understanding of the possible penalties for these Counts,
including a sentence of ten years to life for Count 2. Further, he agreed that the Government
would “recommend that the Court should impose a sentence upon [him] equal to the minimum of
the applicable guideline range.” He agreed that the amount of loss to the First Source Bank was
between $10,000 and $50,000, and that he made a threat of death during the robbery. With
respect to his appellate rights, the Defendant stated:
I understand that the law gives a convicted person the right to appeal the conviction
and the sentence imposed, I also understand that no one can predict the precise
sentence that will be imposed, and that the Court has jurisdiction and authority to
impose any sentence within the statutory maximum set for my offense(s) as set forth
in this plea agreement; with this understanding and in consideration of the
Government’s entry into this plea agreement, I expressly waive my right to appeal
2
or to contest my conviction and my sentence and any restitution order imposed or the
manner in which my conviction or my sentence or the restitution order was
determined or imposed, to any Court on any ground, including any claim of
ineffective assistance of counsel unless the claimed ineffective assistance of counsel
relates directly to this waiver or its negotiation, including any appeal under Title 18,
United States Code, Section 3742 or any post-conviction proceeding, including but
not limited to, a proceeding under Title 28, United States Code, Section 2255.
(Plea Agreement ¶ 7.e.) The Defendant also stated that Attorney Gevers had “done all that
anyone could do to counsel and assist” him, that he understood the proceedings against him, that
his plea of guilty was offered “freely and voluntarily and of [his] own accord,” that no promises
were made to him other than those in the Plea Agreement, and that he had not been “threatened
in any way” to cause him to plead guilty.
At the March 18 change of plea hearing, the Defendant pled guilty in accordance with his
Plea Agreement. He stated that he had an opportunity to read and discuss his Plea Agreement
with his lawyer before signing it; that he understood the terms of the Plea Agreement; that no
one had threatened him in any way to get him to sign the Plea Agreement; that no one had made
any promises or assurances of any kind to get him to plead guilty other than the promises
contained in the Plea Agreement; that he was pleading guilty of his own free will; that he
understood the Government would be recommending he receive a sentence equal to the
minimum of the applicable Guideline range, but that the Court could reject the recommendation
without letting him withdraw his plea; and that the penalty he faced on Count 2 was not less than
ten years and not more than life. He also admitted that he committed the crimes charged in
Counts 1 and 2; that he brandished the short-barreled shotgun as part of the bank robbery; that it
was a working firearm at the time of the robbery; and that the deposits of the First Source Bank
were insured by the Federal Deposit Insurance Corporation at the time of the robbery. Further,
3
he stated that he understood he was agreeing to waive his right to appeal his conviction or
sentence and the manner in which they were imposed; that he was agreeing to be prohibited from
collaterally attacking his conviction or sentence or the manner in which they were imposed
through a habeas corpus petition; and that he was giving up his right to claim the ineffective
assistance of legal counsel unless the claimed ineffectiveness related directly to the appellate
waiver or its negotiation. He also stated an understanding that the United States Probation Office
would prepare a presentence investigation report detailing his criminal history and background.
Finally, he stated that he was fully satisfied with the representation provided by Attorney Gevers.
At the conclusion of the hearing, the Court found that the Defendant was fully competent and
capable of entering an informed plea, that he was aware of the charges and the consequences of
the plea, and that the Defendant’s plea of guilty was a knowing and voluntary plea, supported by
an independent basis in fact, containing each of the essential elements of the offenses. The Court
therefore accepted the Defendant’s guilty plea on both Counts 1 and 2. Prior to sentencing,
Attorney Gevers filed a Sentencing Memorandum [ECF No. 37] on behalf of the Defendant,
requesting that the Court impose a sentence below the Guideline range and not apply the career
offender enhancement because the convictions supporting the enhancement all occurred when
the Defendant was between ages seventeen and twenty-two. Additionally, Attorney Gevers
asked the Court to consider the Defendant’s troubled personal background circumstances and
impose a sentence outside of the advisory Guideline range.
On November 9, 2009, applying the career offender enhancement, the Court sentenced
the Defendant to 188 months imprisonment on Count 1, and 120 months imprisonment on Count
2 to run consecutively with Count 1. At the November 9 sentencing hearing, Attorney Gevers
4
stated on behalf of the Defendant that a career offender sentence was a correct application of the
Guidelines, but argued nevertheless for a sentence 118 months fewer than the Guidelinerecommended sentence. Furthermore, when the Court asked the Defendant if he agreed with
everything Attorney Gevers had said on his behalf, the Defendant stated that he did. The
Defendant did not appeal his conviction.
The Defendant now seeks to vacate, set aside, or correct his sentence on the basis of
ineffective assistance of counsel, and challenges the legality of his sentence. The Government, in
its Response, argues that the Defendant’s claims provide no basis for collateral relief because
they have been waived. The Court agrees that the Defendant’s claims do not entitle him to
collateral relief.
ANALYSIS
Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct
his sentence. This relief is available only in limited circumstances, such as where an error is
jurisdictional, of Constitutional magnitude, or there has been a “complete miscarriage of justice.”
See Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). Motions to vacate a conviction or
correct a sentence ask a court to grant an extraordinary remedy to a person who has already had
an opportunity of full process. Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006).
The Defendant asserts that he is entitled to habeas relief on seven grounds1: First, he
maintains that his counsel was ineffective when he refused to file a notice of appeal on the
1
In his Memorandum of Law in Support, the Defendant lists five grounds for habeas relief, but
the Court is treating each independent argument as a potential ground for relief.
5
Defendant’s behalf because the Defendant had waived his right to appeal as part of his Plea
Agreement. Second, the Defendant alleges his attorney was ineffective in failing to advise him
that upon pleading guilty he could receive a career offender sentence for the charges he was
facing, which undermined his ability to intelligently decide whether to accept the Plea
Agreement. The Defendant’s third claim is that his counsel’s assistance was ineffective because,
the Defendant alleges, he was erroneously advised that he could receive a life sentence if he did
not plead guilty and because his attorney coerced him to sign the Plea Agreement with threats
that he would receive a life sentence if he did not plead. Fourth, the Defendant argues Attorney
Gevers was ineffective for failing to challenge the Government’s indictment including an
allegation that the First Source Bank was federally insured at the time of the bank robbery. Fifth,
the Defendant argues that his sentence was not lawful because his career offender status on
sentencing was based in part upon an Indiana domestic battery felony. Sixth, the Defendant
challenges the lawfulness of his sentence because he alleges that Assistant United States
Attorney Anthony Geller committed prosecutorial misconduct by charging the § 2113 bank
robbery offense before receiving the letter verifying the federally insured status of the deposits in
the bank on the day of the robbery. Seventh, the Defendant argues his sentence is unlawful
because the elements essential to a conviction under § 2113(d) were omitted from the Plea
Agreement, which he argues denied him due process and effective assistance of counsel in plea
negotiations.
The Government argues in its Response that the Defendant has not alleged any
ineffective assistance of counsel “specifically with respect to the negotiation of the waiver
provision,” (Gov’t’s Resp. 3, ECF No. 59), and therefore all of his challenges are obviated by his
6
proper waiver. The Government also notes that the Defendant’s “Sworn Affidavit” is neither
signed nor notarized, and therefore the Defendant has not produced admissible evidence
requiring a hearing on any of his claims.
A.
Legal Standard
1.
Plea Waivers
A plea agreement is a type of contract subject to contract law principles tempered by
limits that the Constitution places on the criminal process. See United States v. Bownes, 405 F.3d
634, 636 (7th Cir. 2005). Waivers, including those that waive the right to collaterally attack a
conviction or sentence, are enforceable as a general rule. Jones v. United States, 167 F.3d 1142,
1145 (7th Cir. 1999). An appellate waiver is enforced if its terms are “express and
unambiguous,” see United States v. Woolley, 123 F.3d 627, 632 (7th Cir. 1997), and if the record
shows that the defendant “knowingly and voluntarily” entered into the agreement, United States
v. Jemison, 237 F.3d 911, 917 (7th Cir. 2001) (quoting Jones, 167 F.3d at 1144). The Seventh
Circuit has held that only two claims can be raised in a § 2255 motion by a defendant who has
expressly and unambiguously waived his right to collaterally attack his conviction and sentence:
(1) claims that the waiver was not knowingly and voluntarily made; or (2) claims that counsel
was ineffective in negotiating the waiver. Jones, 167 F.3d at 1145 (stating that “we reiterate that
waivers are enforceable as a general rule; the right to mount a collateral attack pursuant to §
2255 survives only with respect to those discrete claims which relate directly to the negotiation
of the [plea agreement]”); see also United States v. Rhodes, 330 F.3d 949, 952 (7th Cir. 2003)
(noting that a waiver does not deprive a defendant of the right to pursue a claim that the waiver
7
was involuntarily made, was based on a constitutionally impermissible factor (such as race), or
was made without the effective assistance of counsel); United States v. Behrman, 235 F.3d 1049,
1051–52 (7th Cir. 2000) (stating that all the terms of a plea agreement stand or fall together, and
that only arguments that would nullify the plea itself survive voluntary waivers of appeal and
collateral attack).
2.
Ineffective Assistance of Counsel Claims
In seeking to prove that his counsel rendered ineffective assistance, the Defendant “bears
a heavy burden.” Jones v. Page, 76 F.3d 831, 840 (7th Cir. 1996) (citation omitted). To establish
ineffective assistance of counsel, a petitioner must show that: (1) his attorney’s performance “fell
below an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688
(1984); and (2) there is a reasonable probability that “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. “A failure to establish either
prong results in a denial of the ineffective assistance of counsel claim.” Rastafari v. Anderson,
278 F.3d 673, 688 (7th Cir. 2002) (citation omitted).
The performance prong requires the defendant to specifically identify acts or omissions
that form the basis of his claim of ineffective assistance. Strickland, 466 U.S. at 690. Based on
the totality of the circumstances, the court must then determine whether the identified acts and
omissions fall outside the range of professionally competent assistance. Id. The prejudice prong
requires the defendant to show that his trial counsel’s errors are so serious as to render his trial
fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 368–69 (1993).
“Failure to raise a losing argument, whether at trial or on appeal, does not constitute
8
ineffective assistance of counsel.” Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996).
B.
Claims that Do Not Involve an Involuntary Waiver or Negotiation of the Plea
Under the Seventh Circuit’s formulation, the only claims that survive a proper waiver of
the right to appeal or collaterally challenge a sentence are claims that the waiver was
involuntary, i.e. “not the product of the defendant’s free will,” or claims of ineffective assistance
of counsel in the negotiation of the waiver. Jones, 167 F.3d at 1145. It is undisputed that the
Defendant entered into a Plea Agreement which waived his right to appeal or collaterally
challenge his sentence. The Court begins with an analysis of the grounds for relief raised by the
Defendant which do not involve either category of claims still available to him under Jones.
1.
Claimed Ineffective Assistance for Failing to File Notice of Appeal
The Defendant’s first claim of ineffective assistance of counsel is that Attorney Gevers
was ineffective for not filing a notice of appeal on his behalf despite the appellate waiver in his
Plea Agreement. The Defendant avers that Attorney Gevers stated on the day of
sentencing—immediately after the sentencing hearing—that he would enter an appeal on the
Defendant’s behalf, but then sent the Defendant a letter a few days later stating that he would not
file the appeal because the Defendant had waived his right to do so. The Defendant argues that
Attorney Gevers did not know on the date of sentencing that the Defendant had waived his right
to appeal, and that his assistance must therefore have been ineffective with respect to the
negotiation of the Plea Agreement.
The Defendant cites to several different Courts of Appeals which have found that a
9
waiver of appeal in a plea agreement does not relieve counsel of the duty to file a notice of
appeal upon a client’s request. See Campusano v. United States, 442 F.3d 770, 772–77 (2d Cir.
2006); United States v. Poindexter, 492 F.3d 263 (4th Cir. 2007); United States v. Tapp, 491
F.3d 263 (5th Cir. 2007); Watson v. United States, 493 F.3d 960 (8th Cir. 2007); United States v.
Sandoval-Lopez, 409 F.3d 1193, 1195–99 (9th Cir. 2005); United States v. Garrett, 402 F.3d
1262, 1265–67 (10th Cir. 2005); Gomez-Diaz v. United States, 433 F.3d 788, 791–94 (11th Cir.
2005). Notably, the Defendant does not cite to United States v. Nunez, 546 F.3d 450 (7th Cir.
2008), where the Seventh Circuit disagreed with those courts and held that “a waiver of appeal
must be enforced” where “the plea was voluntary.” Id. at 453. Reasoning that “[a] lawyer . . . has
a duty to his client to avoid taking steps that will cost the client the benefit of the plea bargain,”
the Seventh Circuit concluded that “a lawyer has a duty to the judiciary to avoid frivolous
litigation—and an appeal in the teeth of a valid waiver is frivolous.” Id. at 455.
First, the Defendant’s argument that Attorney Gevers’s failure to file a notice of appeal
has any relation to the negotiation of his plea agreement is not supported by facts in the record.
The Defendant suggests that Attorney Gevers was not aware on the date of sentencing that the
Defendant had just waived his right to appeal his conviction or sentence or the manner in which
they were imposed, and thus that his representation with respect to the Plea Agreement in
general must have been ineffective. The Defendant suggests this through a statement of facts in
his Memorandum of Law but not through sworn affidavit testimony.2 In a Letter from Attorney
Gevers to the Defendant, dated November 11, 2009—two days after the Defendant’s sentencing
2
The Defendant does make other allegations in a document entitled “Sworn Affidavit” [ECF No.
52 at 43–44], however that document is neither signed nor notarized.
10
hearing—Attorney Gevers states as follows:
In court at the time of your sentencing hearing, you and I discussed whether or not
you were able to appeal your conviction and sentence. I refer you to paragraph seven
E of the plea agreement that you signed and that we have previously discussed
wherein you waive, or give up, your right to appeal or contest your conviction and
your sentence. This waiver of your appeal rights has been upheld by the Seventh
Circuit Court of Appeals in prior cases. Therefore, you cannot appeal your sentence
at this time.
(Letter, ECF No. 52 at 24.) The Court finds that Attorney Gevers’s Letter does not support the
proposition for which the Defendant offers it. It does not suggest that Attorney Gevers was
unaware at the November 9 sentencing hearing whether or not the Defendant had just waived his
right to appeal his sentence or conviction. Instead, it suggests merely that Attorney Gevers was
unaware at the November 9 sentencing hearing whether or not the Defendant would be able to
file an appeal of his sentence or conviction in light of the fact that he had just waived his right to
appeal his sentence or conviction. The record put forward by the Defendant does not show that
this alleged oversight by Attorney Gevers had anything to do with the negotiation of the Plea
Agreement. Nor does the record suggest that Attorney Gevers’s refusal to file the notice of
appeal caused the Defendant to unknowingly or involuntarily enter into the Plea Agreement.
Therefore, the Defendant’s waiver forecloses this claim under Jones.
Further, a waiver of appeal must be enforced as long as the Plea Agreement was
voluntarily entered. Nunez, 546 F.3d at 453. At the November 9, 2009, change of plea hearing,
the Court found that the Defendant made a knowing and voluntary waiver of his right to appeal
his conviction or sentence, and of his right to collaterally attack his conviction or sentence
except for a claim of ineffective assistance of counsel relating to the negotiation of his plea. At
that hearing, the Defendant stated that he had an opportunity to read and discuss his Plea
11
Agreement with his lawyer before signing it, that he understood the terms of the Plea Agreement,
that no one had threatened him in any way to get him to sign the Plea Agreement, that no one
had made any promises or assurances of any kind to get him to plead guilty other than the
promises contained in the Plea Agreement, and that he was pleading guilty of his own free will.
The Court found that the Defendant was fully competent, aware of the charges and the
consequences of his plea, and that the plea was knowing, voluntary, supported by an independent
basis in fact, and contained each of the essential elements of the offenses. Additionally, the Plea
Agreement states that the Defendant entered into the plea voluntarily, and that no one had
threatened him or made any promises not contained in the Plea Agreement to convince him to
plead guilty. Thus, the record shows that the Defendant’s plea was voluntary, and therefore “the
waiver of appeal must be enforced.” Nunez, 546 F.3d at 453. On this basis, if the claim were not
already foreclosed under Jones, the Court could deny the Defendant’s first claim for relief under
Nunez.
Finally, even were the Court to reach the merits of the Defendant’s ineffective assistance
of counsel claim regarding the failure to file a notice of appeal when the Plea Agreement waives
such an appeal, the Defendant’s claim would fail. As Attorney Gevers correctly noted in his
Letter, the Seventh Circuit has upheld a lawyer’s refusal to file an appeal when the client has
waived the right to appeal. A lawyer is obliged to protect the client’s right to the benefit of the
plea agreement, and to avoid frivolous litigation. See Nunez, 546 F.3d at 455. Furthermore, “an
appeal in the teeth of a valid waiver is frivolous.” Id. Therefore, the Defendant’s claim would
fail the first prong of Strickland because Attorney Gever’s action was objectively reasonable,
and would fail the second prong of Strickland because even if Attorney Gevers had filed the
12
notice of appeal as the Defendant requested, the Seventh Circuit would have denied the appeal
based on the Defendant’s valid waiver. However, as stated above, the Court need not reach the
merits of the Defendant’s claim because the Defendant made a knowing and voluntary waiver of
his right to collaterally challenge his sentence, and this claim does not relate to the negotiation of
the Plea Agreement or involve an allegedly unknowing or involuntary plea.
2.
Claimed Ineffective Assistance for Failing to Challenge the Government’s Evidence on
Whether the Deposits were Federally Insured
The Defendant claims Attorney Gevers was ineffective when he failed to challenge the
Government’s evidence on the issue of whether the First Source Bank was federally insured on
the day of the bank robbery. In support, the Defendant offers a letter from the Federal Deposit
Insurance Corporation dated November 5, 2008, showing that the First Source Bank at 5719
Bluffton Road, Fort Wayne, Indiana, was in fact federally insured on August 15, 2008. (Letter
and Attachments, ECF No. 52 at 27–34.) The Defendant argues that as his Indictment was filed
with this Court on August 27, 2008, the Government did not have proof of an element of the
offense at the time the Grand Jury indicted him, and his attorney was therefore ineffective for
failing to challenge this evidence.
Notably, the Defendant does not suggest that the First Source Bank was actually
uninsured by the FDIC on the date of the bank robbery. He merely asserts that his attorney was
ineffective for failing to challenge what he views as the Government’s failure of proof on this
element. The Defendant does not argue that this alleged omission by Attorney Gevers caused
him to unknowingly or involuntarily enter into his Plea Agreement. Nor does the Defendant’s
argument suggest that Attorney Gevers was ineffective in the negotiation of the plea. Therefore,
13
as discussed above, this claim fails because it was waived by the Defendant’s voluntary plea and
is foreclosed by the Seventh Circuit’s Jones formulation. Even if the Defendant’s argument went
to ineffectiveness in the negotiation of the plea, the Defendant’s argument would fail under a
Strickland analysis. First, it appears that Attorney Gevers’s action in not challenging the
Government’s evidence on this point was objectively reasonable. As the Seventh Circuit has
stated, “[f]ailure to raise a losing argument . . . does not constitute ineffective assistance of
counsel.” Stone, 86 F.3d at 717. The record suggests this would have been a losing argument,
and failure to raise it is not ineffective assistance of counsel. Second, because it would have been
a losing argument, Attorney Gevers’s failure to raise it cannot have caused actual prejudice to
the Defendant. Accordingly, even if this claim were not foreclosed by the Defendant’s waiver of
his collateral challenge rights under Jones, it would be denied because the Defendant has not
shown ineffective assistance of counsel.
3.
Claimed Due Process Violation for the Use of a Prior Domestic Battery as a Crime of
Violence Predicate to Career Offender Status
The Defendant claims this Court violated his due process rights under the Fifth
Amendment when it sentenced him as a career offender. He argues his 2007 felony conviction in
Allen County, Indiana, for domestic battery cannot be used as a career offender predicate offense
because it “only involved provoking or insulting contact with his ex-fiancee, and it did not
encompass the kind of violent and aggressive conduct required by the Supreme Court” to
substantiate career offender status. (Mem. of Law in Supp. 15, ECF No. 52.) See Begay v. United
States, 553 U.S. 137, 139 (2008) (holding that driving under the influence of alcohol is not a
“violent felony” under the Armed Career Criminal Act). The Defendant’s claim is not that he
14
was coerced into unknowingly or unwillingly signing his Plea Agreement because his domestic
battery conviction was used to substantiate his career offender status. Nor does the Defendant
claim that his attorney was ineffective in negotiating the Plea Agreement because of a
miscalculation on this point. Indeed, the Defendant had opportunity to object to the Guidelines
calculations in his presentence investigation report and did not object. Then at sentencing,
Attorney Gevers acknowledged that the Guidelines calculations in the presentence investigation
report were correct, and when asked about whether he agreed with his attorney’s statements on
his behalf, the Defendant answered that he did. Therefore, because the Defendant voluntarily
waived his right to collaterally challenge his sentence, and because this claim is no longer
available to him under Jones, this claim for collateral relief will be denied.
Even were the Court to reach the merits of this claim, it appears the Defendant’s career
offender sentence was appropriate. First, it appears the Defendant’s 2007 domestic battery
conviction was violent for the purposes of the career offender classification. The Seventh Circuit
has held that to satisfy the career offender definition of a crime of violence, the offense “must in
the ordinary run of cases describe behavior that poses a sufficiently great risk of physical injury
to another.” United States v. Woods, 576 F.3d 400, 408 (7th Cir. 2009) (citing Chambers v.
United States, 555 U.S. 122, 126–30 (2009)). The Indiana crime of domestic battery has as an
element a knowing or intentional touching “in a rude, insolent, or angry manner that results in
bodily injury.” Ind. Code § 35-42-2-1.3. A rude, insolent, or angry touching that results in bodily
injury is violent, by definition posing a sufficiently great risk of physical injury to another, and
would qualify his 2007 domestic battery conviction as a career offender predicate offense. See
United States v. Parrish, 422 Fed. App’x 540, 542–43 (7th Cir. 2011) (upholding district court
15
determination that an Illinois domestic battery conviction qualified as a career offender predicate
offense); United States v. Upton, 512 F.3d 394, 405 (7th Cir. 2008) (holding that Illinois
domestic battery convictions requiring proof of “bodily harm” “clearly qualif[ied]” as career
offender predicate offenses). Further, it appears that the Defendant’s 2002 felony controlled
substance conviction and his 2005 felony battery conviction would qualify him for the career
offender enhancement whether or not his 2007 felony domestic battery conviction was included.
Finally, even if the Defendant had not been characterized as a career offender, the presentence
investigation report indicates that he had 15 criminal history points. Thus, his criminal history
category would have been VI even without application of the career offender provision, and his
Guidelines sentence would have been the same. Because the Defendant has waived this claim,
and because it appears he was not denied due process when he was sentenced as a career
offender, this claim for collateral relief will be denied.
4.
Allegation of Prosecutorial Misconduct
The Defendant claims that his due process rights were violated when AUSA Geller
obtained a grand jury indictment against him for bank robbery in August and did not receive the
letter verifying the FDIC insured status of the bank until November. The Defendant argues
without any evidence that AUSA Geller must not have had any proof about the FDIC insured
status of the bank until November. The Defendant does not argue that this claim caused him to
unknowingly or involuntarily enter into the Plea Agreement, nor does he allege that this claimed
prosecutorial misconduct had anything to do with the assistance of his counsel in negotiating the
Plea. Accordingly, under Jones, this claim is foreclosed by the Defendant’s voluntary waiver of
16
his right to collaterally challenge his sentence.
5.
Claimed Ineffective Assistance for Failing to Object to Allegedly Improper Conviction
Under 18 U.S.C. § 2113(d)
The Defendant’s next claim is that he should not have been convicted of assaulting or
putting life in jeopardy by the use of a dangerous weapon or device under 18 U.S.C. § 2113(d)
because he alleges that the Plea Agreement did not list the elements necessary for conviction
under § 2113(d). The Defendant’s challenge to the Plea Agreement does not suggest that this
§ 2113(d) issue somehow coerced him to unknowingly or unwillingly enter into the Plea
Agreement. However, viewed broadly, it appears the Defendant is arguing that Attorney
Gevers’s failure to object to this supposed deficiency in the Plea Agreement amounted to
ineffective assistance of counsel in the negotiation of the plea. The Court finds that the
Defendant’s claim does not relate to the negotiation of the plea. The Defendant is not claiming
that Attorney Gevers should have negotiated a Plea Agreement that did include more information
about the § 2113(d) offense. Because this claim is foreclosed by the Defendant’s voluntary
waiver, and because it does not fall into the categories of claims still available to him under
Jones, the Court will deny this claim for collateral relief.
Even were the Court to reach the merits, the Defendant’s claim misses the point. He
insists that conviction would be inappropriate based on language in the Plea Agreement that he
argues is deficient. But at the change of plea hearing, the Defendant admitted to committing the
charges contained in the Indictment in Counts 1 and 2. Specifically, the Defendant admitted to
assaulting bank employees during the robbery by having them lie on the floor and brandishing
the short-barreled shotgun at them. He also admitted that it was a working firearm, although it
17
was not loaded.3 Assaulting any person by the use of a dangerous weapon substantiates a
conviction under § 2113(d). Because the Defendant pled to the offenses charged in both Counts,
Attorney Gevers’s assistance was not objectively unreasonable when he did not object to the
§ 2113(d) conviction, nor did his failure to object prejudice the Defendant. Furthermore, the
Defendant has not suggested that he would have elected to go to trial on the § 2113(d) offense if
Attorney Gevers had somehow advised him differently or negotiated a different Plea Agreement.
Accordingly, the Defendant’s objection to his conviction under § 2113(d) is proscribed by his
proper waiver, and even on the merits of the claim, it does not provide a basis for collateral
relief. The Court will therefore deny this claim.4
C.
Claims that Do Involve the Negotiation of the Plea
1.
Claimed Ineffective Assistance for Failing to Advise of a Possible Career Offender
Status
The Defendant claims that Attorney Gevers failed to advise him that upon pleading guilty
the Government could pursue a career offender sentence against him, and that his attorney’s
3
The Supreme Court has held that an unloaded gun is still a “dangerous weapon” under
§ 2113(d), and that assault with an unloaded gun during a bank robbery substantiates a conviction under
§ 2113(d). McLaughlin v. United States, 476 U.S. 16, 17–18 (1986); United States v. Park, 52 Fed. App’x
294, 295 (7th Cir. 2002).
4
As part of this claim, the Defendant argues he should not have been convicted under § 2113(a)
because the Indictment and Plea Agreement did not specify the amount of money he took from the bank,
and that his counsel was ineffective on this point. The Court finds that the Defendant is confusing bank
robbery under § 2113(a), which does not require the Government to prove the amount of property or
money taken, with stealing from a bank under § 2113(b), which requires the Government to prove
whether the value of the property or money taken exceeded or did not exceed $1000. Because the
Government was not required to prove the amount taken, the Defendant’s § 2113(a) argument fails, and
his attorney was not ineffective for failing to argue it. Furthermore, the Court notes that the Defendant
agreed in the Plea, for the purposes of applying the Guidelines, that the amount of loss was more than
$10,000 but less than $50,000.
18
advice was so incorrect and insufficient that it undermined his ability to make an intelligent
decision whether or not to plead guilty. The Defendant argues Attorney Gevers was ineffective
in not investigating the prior offenses prior to plea negotiations, notes that the predicate offenses
used in determining his career offender status are not outlined in the Plea Agreement, and
appears to argue that Attorney Gevers was incorrect in advising him that he could receive a life
sentence if he did not plead guilty.5 The Government responds only by arguing that this
claim—like the rest of the Defendant’s claims—does not relate directly to the waiver provision
of the Plea Agreement or its negotiation.
The Court finds that this claim by the Defendant does at least arguably relate to the
waiver provision of his Plea Agreement. If it were true that he had been misadvised about the
consequence of pleading guilty, then the claimed ineffective assistance could have affected his
decision whether to accept the Plea Agreement, which would have also affected the waiver
provision as an integral component of his Plea Agreement. Therefore, the Court will analyze
whether the Defendant’s claimed ineffective assistance meets the Strickland standard. As the
Government notes, the Defendant’s claims against Attorney Gevers do not come before the
Court in the form of a verified petition or a properly sworn affidavit. Therefore, the only
suggestion in the record that Attorney Gevers failed to notify the Defendant of a possible career
offender sentence comes from the Defendant’s Memorandum of Law in Support. The Defendant
has not provided a sworn affidavit, and absent such a detailed affidavit, the Court sees no need
for an evidentiary hearing. See Galbraith v. United States, 313 F.3d 1001, 1009–10 (7th Cir.
5
As discussed below, it was true that the Defendant faced the possibility of a life sentence on
Count 2. The Court so advised him at the change of plea hearing on March 18, 2009, and Attorney Gevers
was correct to advise him of the same.
19
2002). In any case, the Court finds that the Defendant was properly advised on the record, so his
claim of ineffective assistance must fail under a Strickland analysis.
First, the Court finds that the record does not indicate Attorney Gevers’s counsel was
objectively unreasonable. In the Plea Agreement, the Defendant stated his understanding that the
maximum sentence he faced on Count 1 was not more than 25 years of confinement, and the
maximum sentence he faced on Count 2 was not less than 10 years of confinement and not more
than life, to run consecutively to his term of imprisonment for Count 1. (Plea Agreement ¶ 7.b.)
The Defendant also stated his understanding that the Court would determine the applicable
Guideline range in light of an investigation by the United States Probation Office (Id. ¶ 6), and
that no one could predict the precise sentence to be imposed as the Court could impose any
sentence within the statutory maximum for his offenses (Id. ¶ 7.e). Furthermore, at the change of
plea hearing, the Court notified the Defendant of the same possible penalties, and notified him
that the Court’s sentence would be informed by a presentence investigation report to be produced
by the United States Probation Office, but that the Court could decide to adjudge a sentence
either greater or less than the advisory Guideline sentence. The Defendant did not object to the
career offender determination in his presentence investigation report. He entered a Sentencing
Memorandum requesting the Court to consider his difficult life circumstances and impose a
sentence varying 118 months from his Guideline sentence, effectively requesting the Court not to
apply the career offender provision of the Guidelines. Finally, at the sentencing hearing on
November 9, 2009, the Defendant indicated his agreement with Attorney Gevers’s statement that
his career offender status was a correct application of the Guidelines. From all the evidence
before the Court, it appears the Defendant knew his sentence would be based in part upon his
20
criminal history, and elected to go forward with his plea even in light of his career offender
status. Thus, in no way was Attorney Gevers’s assistance deficient in this matter.
Even if the Defendant had established through evidence on the record that Attorney
Gevers’s assistance was objectively unreasonable, the Court finds that he has not shown how he
was prejudiced by his attorney’s allegedly unreasonable assistance. Attorney Gevers submitted a
Sentencing Memorandum compellingly presenting the specific life circumstances leading to the
Defendant’s crimes and requesting a sentence that would significantly vary from the Guidelines
sentence and discount the career offender enhancement. Although the Court did not grant the
requests put forward by Attorney Gevers, there is no evidence to suggest that the Court would
have decided any differently absent a plea of guilty or a Plea Agreement. The Court sentenced
the Defendant to the minimum sentence under the applicable Guideline range in accordance with
the Plea Agreement. Thus, the Defendant has failed to show how Attorney Gevers not advising
him of the possibility of a career offender sentence could possibly have affected either the
outcome on the merits or his ultimate sentence. Because the Defendant’s claim fails both prongs
of the Strickland ineffective assistance of counsel analysis, his § 2255 Motion will be denied
with respect to this claim.
2.
Claimed Ineffective Assistance for Alleged Threats and Incorrect Advising
The Defendant claims he was coerced to plead guilty by threats from Attorney Gevers
that he would receive a life sentence if he did not plead guilty. Additionally, the Defendant
suggests that Attorney Gevers was incorrect when he advised the Defendant that he faced the
possibility of a life sentence.
21
The Court notes again that the only evidence put forward by the Defendant on this claim
comes from his Memorandum, and not from a properly signed or notarized document. However,
because both of the allegations within this claim are still available to the Defendant under Jones,
the Court will analyze whether the Defendant’s evidence demonstrates that he involuntarily
entered into his Plea Agreement, or that Attorney Gevers was ineffective in the negotiation of the
Plea.
The first allegation is that Attorney Gevers threatened the Defendant to induce him to
plead guilty. This allegation is directly contradicted by the Defendant’s own words. In the Plea
Agreement, the Defendant stated that no one had made any threats to convince him to plead
guilty. Additionally, at the Change of Plea Hearing, the Defendant stated that no one had
threatened him in any way to get him to sign the Plea Agreement, that no one had made any
promises or assurances of any kind to get him to plead guilty other than the promises contained
in the plea agreement, and that he was pleading guilty of his own free will. The Defendant’s
words show that his plea was voluntary. As the Seventh Circuit has stated, “Judges need not let
litigants contradict themselves so readily; a motion that can succeed only if the defendant
committed perjury at the plea proceedings may be rejected out of hand unless the defendant has a
compelling explanation for the contradiction.” Bethel v. United States, 458 F.3d 711, 719 (7th
Cir. 2006) (quoting United States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005)). The Defendant
has not offered any explanation, let alone a compelling explanation, for why he stated at his
change of plea hearing that no one had made any threats to compel him to plead guilty. The
Defendant has failed to show that he was coerced into an involuntary Plea.
The Defendant’s second allegation within this claim—that Attorney Gevers incorrectly
22
advised him of the possibility of a life sentence—also fails. The record demonstrates that the
Defendant did in fact face the possibility of a life sentence for Count 2. The Defendant
acknowledged this possible sentence in his Plea Agreement, and at the change of plea hearing.
Because the Defendant did face the possibility of a life sentence, Attorney Gevers so advising
him was objectively reasonable and could not have caused prejudice to the Defendant.
Therefore, the Defendant has failed to show that his attorney was ineffective in the negotiation of
the plea.
As the Defendant’s claim fails to show either that the Defendant entered into the plea
unknowingly and involuntarily or that Attorney Gevers was ineffective in the negotiation of the
plea, the Court will deny this claim for collateral relief.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings, the Court must
“issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
A certificate of appealability may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Rule 11 of Rules
Governing Section 2255 Proceedings. The substantial showing standard is met when “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation
marks omitted); Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983). Where the district court has
rejected the constitutional claims on procedural grounds, the court should issue a certificate of
23
appealability “when the prisoner shows . . . that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529
U.S. at 484. Where the district court has rejected the constitutional claim on the merits, “the
showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Id. The defendant is not required to show that he will ultimately succeed on
appeal. Miller-El v. Cockrell, 537 U.S. 322, 337, 342 (2003) (stating that the question is the
“debatability of the underlying constitutional claim, not the resolution of that debate”).
Rule 11(a) permits a district court to direct the parties to submit arguments on whether a
certificate of appealability should issue. Additional argument is not necessary here. The
constitutional issues presented by the Defendant’s Motion are whether the Defendant made a
knowing, voluntary waiver of his right to appeal and collaterally challenge his sentence, whether
Attorney Gevers rendered ineffective assistance in the negotiation of the Plea Agreement, and
whether he coerced the Defendant to sign the Plea Agreement. Because the record indicates that
the Defendant’s plea was voluntary, and because the record indicates that Attorney Gevers acted
reasonably in his representation and did not in any way prejudice the Defendant, the Defendant
cannot make the necessary showing that reasonable jurists would find the district court’s
assessment of counsel’s performance debatable or wrong. Consequently, the Court will deny a
certificate of appealability as to the Defendant’s Motion.
CONCLUSION
24
For the foregoing reasons, the Defendant’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 51] is DENIED, and
the Defendant is DENIED a certificate of appealability.
SO ORDERED on May 29, 2012.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
25
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?