Billian v. USA
Filing
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OPINION AND ORDER DENYING MOTION to Vacate Under 28 U.S.C. 2255 by Larry D Billian. In addition, no Certificate of Appealability shall issue in this case. Signed by Judge William C Lee on 10/30/2013.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
LARRY D. BILLIAN,
v.
UNITED STATES OF AMERICA
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Cause No.: 1:08-CR-31
1:13-CV-251
OPINION AND ORDER
Presently before the court is Petitioner, Larry D. Billian’s (“Billian’s”), “Motion under 28
U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” [DE 110]
filed on August 26, 2013. The Government responded on September 24, 2013 to which Billian
replied on October 11, 2013. For the following reasons, Billian’s Motion will be DENIED.
Discussion
On March 27, 2008, Billian was charged by way of a three count federal indictment for
violations of 21 U.S.C. §841(a)(1) (possession of marijuana with intent to distribute); 18 U.S.C.
§924(c) (possession of a firearm in furtherance of drug trafficking activity); and 21 U.S.C.
§856(a)(1) (maintaining a place for the purpose of distributing drugs). Subsequently, Billian entered
into a written conditional guilty plea to all three counts of the indictment. As part of that contract,
Billian voluntarily waived his rights to bring a petition pursuant to § 2255 (or to challenge his
sentence by way of any other post-conviction proceeding). The plea agreement contained the
following provision:
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
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government’s entry into this plea agreement, I expressly waive my right to appeal or
to contest my conviction, with the exception of my preservation of the right to appeal
the denial of my pretrial motion to suppress which motion was denied by an Opinion
dated March 18, 2009, 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 18 U.S.C.
§ 3742 or any post-conviction proceeding, including but not limited to, a proceeding
under 28 U.S.C. § 2255.
Docket at 56, Plea Agreement, ¶ 7(d).
Billian was eventually sentenced to 130 months
imprisonment. After a partially successful appeal, Billian’s sentence was modified to a term of 120
months imprisonment.
In his present §2255 petition, Billian challenges the sentence imposed
contending that he was sentenced under the wrong statutory provision, and, based upon the recent
holding by the Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013), he should be
resentenced.1
The Government states that Billian has not challenged any aspect of his guilty plea or his
counsel’s performance regarding the negotiation of this waiver provision; as a result, Billian cannot
file a § 2255 petition in violation of this provision. Government’s Response, p. 2. The government
correctly points out that such waivers are generally enforceable and “‘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 waiver.’” Id. (quoting Mason v. United States, 211 F.3d 1065, 1069 (7th Cir.
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In that case, the Justices concluded that any fact that increases the mandatory minimum sentence
for a crime must be submitted to a jury. Recently, in Simpson v. United States, ___ F.3d ___, 2013 WL
3455876 (7th Cir. July 10, 2013), the Seventh Circuit denied a petitioner’s collateral attack on his
conviction holding that Alleyne is not retroactive on collateral review. Id. at *1. Thus, even absent the
appeal waiver, no relief would be afforded to Billian at this time since this circuit’s holding in Simpson.
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2000) (citing Jones v. United States, 167 F.3d 1142, 1144-46 (7th Cir. 1999)). A plea agreement
containing a waiver of the right to appeal and file a petition under § 2255 can be collaterally attacked
in a limited number of circumstances, including challenges based upon contractual grounds such as
mutual mistake or breach, United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005), when a
defendant claims the waiver was involuntary or counsel was ineffective in negotiating the
agreement, Mason, 211 F.3d at 1069, or when the sentence is greater than the statutory maximum
sentence for the offense of conviction. United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005).
Since, as the government states, Billian has not challenged any aspect of his guilty plea, his plea
agreement, or his counsel’s performance, he is precluded from filing the present motion and it must
be dismissed for that reason.
Moreover, considering the record in this case and pursuant to Federal Rule of Appellate
Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C.
§ 2253(c), the Court DENIES a certificate of appealability. “A [COA] may issue ... only if the
applicant has made a substantial showing of the denial of a constitutional right.” Id. at § 2253(c)(2).
To make such a showing, petitioner “must demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented
were ‘adequate to deserve encouragement to proceed further.’ “ Miller-El v. Cockrell, 537 U.S. 322,
335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made
the requisite showing in these circumstances. Thus, no certificate of appealability shall issue.
Conclusion
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Based on the foregoing, Billian’s “Motion under 28 U.S.C. §2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody” [DE 110] is DENIED. In addition, no Certificate
of Appealability shall issue in this case.
SO ORDERED. This 30th day of October 2013.
s/ William C. Lee
United States District Court
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