Payton v. USA
Filing
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OPINION AD ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Chief Judge Philip P Simon on 9/9/2015. (cc: Payton)(rmn)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LANCE PAYTON,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 2:14CV33-PPS
Arising from No. 2:11CR106-PPS
OPINION AND ORDER
In August of 2012, Lance Payton pled guilty in this court to one count of being a
felon unlawfully in possession of a firearm. [DE 22.] He was sentenced in January 2013
to 100 months in prison. [DE 37.] He now challenges that sentence in a Motion to
Vacate, Set Aside or Correct Sentence brought under 28 U.S.C. §2255. [DE 56.] Payton
offers four grounds for relief from his sentence. The first is a claim of ineffective
assistance of counsel relating to the manner in which mitigating circumstances were
argued at sentencing. Second, he claims that at sentencing I failed to treat the United
States Sentencing Guidelines as advisory and failed to adequately consider the required
sentencing factors under 18 U.S.C. §3553(a). Ground Three argues that Payton’s counsel
was constitutionally ineffective in failing to challenge the use of Payton’s Indiana
conviction of Intimidation as a “crime of violence” to increase his base offense level
under §2K2.1 of the Guidelines. Finally, Ground Four is a claim that ineffective
assistance of counsel resulted in Payton’s unknowingly and involuntarily entering into
a waiver of his rights to appeal and make collateral challenges to his conviction or
sentence.
The threshold issue is the government’s invocation of that waiver as requiring
the denial and dismissal of Payton’s motion under §2255. In the plea agreement, Payton
made the following concession:
I expressly waive my right to appeal or to contest my conviction and my
sentence imposed or the manner in which my conviction or my sentence
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 proceedings, including but not limited to, a
proceeding under Title 28, United States Code, Section 2255.
[DE 18 at 4.] These types of appeal waivers are enforceable when the guilty plea is
knowingly and voluntarily made. United States v. Gonzalez, 765 F.3d 732, 741 (7th Cir.
2014) (the appeal waiver stands or falls with the guilty plea itself); United States v. Alcala,
678 F.3d 574 (7th Cir. 2012).
In determining whether such a waiver is enforceable, the Court of Appeals
examines the plea colloquy for substantial compliance with Rule 11 of the Federal Rules
of Criminal Procedure, to ensure that the district judge adequately explained “the
nature of the charge, the statutory penalties, the role of the sentencing guidelines and
the judge’s discretion in applying them, the process for receiving credit for acceptance
of responsibility and cooperation with the government, and the trial and appellate
rights [the defendant] was waiving by entering the plea,” as well as ensured that
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“neither the government nor counsel [was] forcing him to plead guilty or assuring a
specific sentence.” United States v. Zitt, 714 F.3d 511, 515 (7th Cir. 2013). “We rely on the
record of the colloquy because it is conducted under oath and has a ‘presumption of
verity.’” Gonzalez, 765 F.3d at 741, quoting United States v. Adams, 746 F.3d 734, 746 (7th
Cir. 2014).
So first I examine the transcript of the plea hearing [DE 50], to determine whether
the guilty plea, and the appeal waiver contained within it, meet this standard.
Defendant told me he wanted to plead guilty and was put under oath. [Id. at 5-6.]
Payton was 34 years old and had been enrolled in college. [Id.at 6.] While in jail, he had
been involved in drug counseling and mental health treatment, which he said had
“helped [him] a great deal,” and he affirmed that he was “able to meaningfully
communicate with [counsel] about the case and to talk about it and devise a strategy”
for himself. [Id.] I then went through the plea agreement with him in some detail to
assure his understanding of it. [Id. at 9.]
The offense charged, the penalties, the Guidelines and the parties’ agreements
about their application, the related agreement with the Lake County prosecutor, and the
appeal waiver were all reviewed, with particular emphasis on Payton’s understanding
of the plea agreement and the voluntariness of his decision to enter into it and plead
guilty to the charge. [Id. at 9-16.] The appeal waiver was given special attention, and I
explained its significance in plain language and received Payton’s assurance that he
understood he would be unable to appeal to a higher court or come back to this court to
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attack his conviction, with very few exceptions. [Id. at 13-14.] Payton repeatedly
reaffirmed that he understood. [Id.] On this record, I would readily conclude that the
plea agreement and its appeal waiver are binding on Payton and enforceable, unless
Payton demonstrates that counsel’s ineffectiveness somehow resulted in the waiver.
Payton’s waiver had an express exception for claims of ineffective assistance of
counsel relating to the waiver itself or its negotiation. This merely reflects the legal
limits of such waivers as repeatedly noted by the Seventh Circuit. Hurlow v. United
States, 726 F.3d 958, 964 (7th Cir. 2013) (“We have...repeatedly recognized that appellate
and collateral review waivers cannot be invoked against claims that counsel was
ineffective in the negotiation of the plea agreement.”) Payton’s Ground Four is
therefore excepted from the waiver.
What does Payton actually argue in Ground Four? In his §2255 motion, Payton
“admits that his counsel noted the existence [of the] waivers and that the district court
noted the existence of the waiver and gave some explanation as to the meaning of the
waiver.” [DE 56 at 8.] He goes on to acknowledge that his own “statements at the plea
hearing were truthful, and Mr. Payton believed that after the district court explained the
waiver, he understood the meaning of the appeal waiver.” [Id.] Somewhat inexplicably
then, Payton proceeds to contend that “after sentencing and after his appeal was
dismissed,1 Mr. Payton understood for the first time that the waiver meant that, even if
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After sentencing, Payton’s counsel filed a notice of appeal, but Payton later
voluntarily dismissed the appeal, acting pro se. [DE 48-1 at 1.]
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the sentence were incorrectly calculated, he may not be permitted to file action to
address that error – that he would be stuck with an incorrectly-calculated sentence.”
[Id.]
Payton offers no explanation for his previous lack of understanding, which is
particularly incredible after he acknowledged at the plea hearing that if he was
unhappy or disagreed with something that I did, he would be “stuck with those
decisions” and was “not going to be able to appeal them to a higher court.” [DE 50 at
13.] Furthermore, as stated in the motion itself, Ground Four offers no alleged fault or
failure of counsel that could in some way be responsible for Payton’s claimed lack of
understanding. Neither does Payton’s later-filed memorandum in support of his
motion. [DE 59.] There again, Payton merely summarily claims that he “entered into
the appeal waiver unknowingly and unintelligently as a result of ineffective assistance
of counsel,” without articulating what counsel did or didn’t do that deprived Payton of
the necessary understanding of the plea waiver. [DE 59 at 1.] Incredibly, in his
memorandum Payton makes a bald claim that he “was unaware either of the existence
of the appeal waiver or the nature and consequences of the waiver.” [Id.] This is
demonstrably false, given the record of my review and explanation of the waiver at the
plea hearing, and also contradicts Payton’s own statement of Ground Four in the §2255
motion, where he acknowledged discussion of the waiver with both his counsel and me.
To demonstrate ineffective assistance of counsel, Payton must show that his
attorney's performance was deficient as a matter of constitutional law and that he was
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prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687
(1984). A constitutionally deficient performance is one that falls "outside the wide range
of professionally competent assistance." Id. at 690. A defendant is prejudiced by
deficient performance if "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 defendant who was convicted on a guilty plea must show that, but for his
attorney's alleged errors, he would not have pled guilty and would have insisted on
going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
Payton never identifies how his attorney’s shortcomings deprived him of the
necessary understanding of the appeal waiver. Any claim that his counsel never even
mentioned the waiver to him is defeated by the contrary facts stated by Payton in
Ground Four itself: “ Mr. Payton admits that his counsel noted the existence [of the]
waivers.” [DE 56 at 8.] I also consider the fact that the waiver is in writing in the plea
agreement Payton signed, and which he told me (under oath) that he fully understood
and signed indicating his “acceptance and agreement to every term and phrase.” [DE
50 at 15.] Even if I credit his nebulous claim that his attorney failed to adequately
apprise him of the appeal waiver and its impact, Payton cannot demonstrate prejudice
because the waiver was fully explained to him at the plea hearing and he went ahead
with his guilty plea. Payton’s ineffective assistance claim is unsupported and without
merit, and fails to establish either that counsel’s performance was deficient or that
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Payton lacked the necessary awareness of the plea’s consequences. I remain persuaded
that the plea and the appeal waiver were knowingly and intelligently made.
In his treatment of Ground Four, Payton also makes generalized references to his
“mental” or “medical” issues. [DE 56 at 8; DE 59 at 7.] These issues are not further
explained and no argument about their significance is offered. Any claim now that his
mental health rendered Payton unable to understand the import of the plea waiver is
distinct from the limited type of ineffective assistance of counsel claim that survives his
appeal waiver, and is precluded by the waiver. In any event, both counsel and I were
aware of Payton’s mental health history. The psychological examination performed in
this case found Payton to have no difficulties with concentration or attention, to have
logical and well-organized thought processes, and to have good judgment and insight.
[DE 30-1 at 7.] The examiner also concluded that Payton was “feigning
psychopathology” and malingering mental health symptoms. [Id. at 8.] Payton
presents no viable claim that he was mentally incapable of understanding the plea
waiver he agreed to.
I have treated Ground Four of Payton’s §2255 as within the exception to his
waiver of the right to bring collateral challenges to his sentence. But the claim itself –
that his counsel rendered ineffective assistance resulting in Payton’s failure to make a
knowing and voluntary appeal waiver – is rejected on its merits.
Even though the waiver does not apply to Ground Four of his petition, the
waiver does preclude his three other grounds for relief because they do not relate to a
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claim concerning the negotiation of the waiver. See Jones v. United States, 167 F.3d 1142,
1145 (7th Cir. 1999). Because the ineffective assistance claims concerning mitigation
arguments and the Guidelines offense level computation do not fall within the waiver’s
narrow exception, they are barred by Payton’s waiver, as is the claim that I failed to
treat the Guidelines as advisory and neglected the pertinent §3553(a) factors. Grounds
One, Two and Three will therefore be denied on the basis of Payton’s waiver.
But in all events, even if I were to treat these grounds for relief on their merits, I
would readily reject each of them. Counsel effectively presented at sentencing every
mitigating factor for my consideration, and gave special attention to Payton’s mental
health history, of which I was well aware given the psychiatric evaluation Payton had
undergone in this case. Defense counsel also appropriately highlighted Payton’s
physical problems, disability, military service, educational difficulties, troubled
childhood, and family responsibilities. See Sentencing Memorandum, DE 34 at pp. 3-8.
Payton demonstrates no right to relief on Ground One. Ground Two is similarly
unpersuasive, as I made abundantly clear at sentencing that I understood that the
Sentencing Guidelines are merely advisory and that in determining Payton’s sentence I
had taken into consideration all the applicable sentencing factors under 18 U.S.C.
§3553(a) to arrive at the term of imprisonment I concluded was sufficient but not greater
than necessary to serve the statutory purposes.
Ground Three is also without merit. Payton’s conviction of Intimidation, a Class
D felony under Indiana law, was properly classified as a crime of violence within the
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meaning of U.S.S.G. §4B1.2(a)(1) because it had an element of the threatened use of
physical force.2 Applying the modified categorical approach to the divisible statute, the
record discloses that Payton was convicted on a charge of threatening to commit a
forcible felony under I.C. §35-45-2-1(a)(1), (b)(1)(A) and (c)(3). This distinguishes the
conviction from the one found not to qualify as a violent felony in United States v. Ellis,
622 F.3d 784, (7th Cir. 2010), in which the Indiana Class D Intimidation conviction was
based on §35-45-2-1(a)(2), (b)(1)(B)(i) and (c)(1). Deciphering this alphabetical jumble,
the conviction in Ellis was for a retaliatory threat to unlawfully injure a law enforcement
officer, whereas Payton was convicted of a threat to commit a forcible felony to coerce the
victim to engage in conduct against her will. The threatened use of physical force was
an element of Payton’s crime, whereas the Seventh Circuit found it was missing from
the elements of the offense in Ellis. Id. at 800. For these reasons, even if this issue had
not been waived, Payton’s ineffective assistance claim concerning the classification of
his Intimidation conviction would not succeed because he can demonstrate neither of
the requirements of such a claim -- deficient performance by his counsel nor any
prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
ACCORDINGLY:
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Payton’s argument concerns the analysis of the Intimidation conviction under
the “physical force as an element” clause of the “crime of violence” definition. [DE 56 at
7; DE 59 at 27.] The issue does not involve the so-called “residual clause” of the
definition or the Supreme Court’s recent decision in Johnson v. United States, 135 S.Ct.
2551 (June 26, 2015), finding the residual clause in analogous statutory language to be
void for vagueness.
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Lance Payton’s Motion to Vacate, Set Aside or Correct Sentence [DE 56] is
DENIED.
SO ORDERED.
ENTERED: September 9, 2015.
/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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