Black v. USA

Filing 1

OPINION AND ORDER denying Motion to Vacate (2255) as to George James Black without a hearing. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE. The Clerk is ORDERED to to distribute a copy of this order to George James Black, #12653-027, Gree nville FCI, Federal Correctional Institution, Inmate Mail/Parcels, P.O. Box 5000, Greenville, IL 62246, or to such other more current address that may be on file for the Petitioner. Further, this Court declines to issue Defendant a certificate of appealability. Signed by Judge Rudy Lozano on 2/17/2016. (cc: Black)(rmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.
GEORGE JAMES BLACK,
Defendant/Petitioner.

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NO. 2:13-CR-78
2:14-CV-327

OPINION AND ORDER
This matter is before the Court on the Motion Under 28 U.S.C.
Section 2255 To Vacate, Set Aside, or Correct Sentence By a Person
in Federal Custody, filed by George James Black on September 8,
2014 (DE #26).

For the reasons set forth below, the section 2255

motion is DENIED without hearing.
this case WITH PREJUDICE.

The Clerk is ORDERED to DISMISS

The Clerk is ORDERED to distribute a

copy of this order to George James Black, #12653-027, Greenville
FCI, Federal Correctional Institution, Inmate Mail/Parcels, P.O.
Box 5000, Greenville, IL 62246, or to such other more current
address that may be on file for the Defendant. Further, this Court
declines to issue Defendant a certificate of appealability.

BACKGROUND
On June 7, 2013, an Information was filed against Defendant,
George James Black (“Black”). Black was charged with possession of
a stolen firearm in violation of 18 U.S.C. § 922(j). Black entered

into a plea agreement with the Government, and the agreement was
filed with this Court on June 7, 2013.
agreed to plead guilty as charged.

(DE #3).

(Id., ¶ 7).

In it, Black

The Government and

Black also reached certain agreements that were not binding on the
Court.

(Id.).

statutory

Specifically, they agreed that, “a sentence at the

maximum

reasonable,

term

fair,

and

of

ten

(10)

years

appropriate

imprisonment

sentence

taking

is

a

into

consideration all circumstances, and that I will be sentenced to a
term of imprisonment of ten (10) years, the statutory maximum term
of imprisonment.”

(Id., ¶ 7(c)(ii)).

Additionally, they agreed

that if Black continued to accept responsibility for his criminal
conduct, he should receive a two point, and if eligible, an
additional one point reduction in his Guideline offense level.
(Id., ¶ 7(c)(i)).

The Government also agreed not to file any

additional charges against Black arising out of and known to the
Government as a result of its investigation. (Id., ¶ 7(c)(iii)).
This provision specifically referenced “violations of Title 18
U.S.C.

Section

1512

(Obstruction

of

Justice/Witness

Tampering/Retaliating Against a Witness).” (Id.).
In exchange for these benefits, the plea agreement contained
the following wavier:
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
2

sentence within the statutory maximum set for
my offense 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 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, Unites States Code, Section 3742 or any
post-conviction proceeding, including but not
limited to, a proceeding under Title 28,
Unites States Code, Section 2255[.]
(Id., ¶ 7(d)).
Further, Black agreed that his attorney had “done all that
anyone could do to counsel and assist [him],” that he was offering
his guilty plea “freely and voluntarily and of [his] own accord,”
that “no promises [had] been made to [him] other than those
contained in [the] agreement,” and that he had not been “threatened
in any way by anyone to cause [him] to plead guilty in accordance
with [the] agreement.”

(Id., ¶¶ 10-11).

This Court held a change of plea hearing on August 9, 2013.
(DE #11).1

When asked whether he was “fully satisfied with the

counsel, representation, and advice given to [him] in this case by
Ms. Prasad and Ms. Soble as [his] attorneys,” Black replied “yes.”
After Black read through paragraph 7 of his plea agreement, the

1

No party has requested a transcript of this hearing. The
Court has reviewed a rough copy provided by the court reporter.
3

Court asked him whether he read it previously, understood it,
agreed with it, and was asking the Court to approve it.
answered yes to each of these questions.

Black

Black acknowledged

repeatedly that he agreed with the individual and collective terms
of the plea agreement and confirmed that he wanted to plead guilty
under the agreement.
The Court informed Black that for Count One, “the most that
you could get would be ten years in jail, a fine of up to $250,000,
or a combination of both of those, up to three years of supervised
release and a $100 special assessment,” and Black answered that he
understood.

Additionally, the Court advised Black that the least

he could get would be probation, no fine, and no supervised
release, but that he would still have the $100 special assessment.
Black again indicated that he understood.
The Court also confirmed that Black understood that the Court
would

ultimately

decide

his

sentence

and

that

neither

the

Government’s recommendations nor the Guidelines were binding. This
included clear notification that the Government’s recommendation
that Black be sentenced to a term of imprisonment of 10 years was
not binding on the Court.
During the hearing, this Court questioned Black extensively
about his voluntary waiver of his right to appeal, including the
following excerpt from that colloquy:
Q:

Okay.
deals

Let’s go on to subparagraph D. That
with appeals, Mr. Black.
Do you
4

understand that in all criminal cases a
defendant has a right to appeal his conviction
and/or sentence in a case?
A:

Yes.

Q:

In this case, you have acknowledged that I
have the jurisdiction and authority to
sentence you up to the maximum provided for by
the statute. Remember you and I talked about
that before. That was that ten years in jail,
a fine of up to $250,000 or a combination of
both of those, up to three years of supervised
release and a $100 special assessment. Do you
understand that?

A:

Yes.

Q:

What you’re basically doing in this paragraph,
Mr. Black, is you’re giving up all of your
rights to an appeal, either the manner in
which you were found guilty or the sentence
that you received. Do you understand that?

A:

Yes.

Q:

There’s some you can’t give up, not very many
though. One of those is jurisdiction. Do you
understand that?

A:

Yes.

Q:

Down the road if you don’t like the sentence
that I give you, you’re not going to be able
to tell Ms. Soble you want to appeal because
you will have given it up. Do you understand
that?

A:

Yes.

Q:

And you understand that once you agree to this
you can’t go back and tell me you changed your
mind, you want to decide to appeal now?

A:

Yes.

Q:

You understand that the government
giving up their rights to an appeal?
5

is not

A:

Yes.

Q:

And you understand that this includes incompetence
of counsel except as it relates to this waiver of
indictment - - waiver of appeal and/or its
negotiation?

A:

Yes.

Q:

You sure this is what you want to do?

A:

Yes.

Q:

You talk to your attorney before making the
decision?

A:

Yes.

Q:

She answer all of your questions?

A:

Yes.

Q:

Have any questions for the Court?

A:

No.

Q:

Are you making
voluntarily?

A:

Yes.

Q:

And are you asking me to approve it as part of
the plea agreement?

A:

Yes.

this

decision

knowingly and

On November 14, 2013, the Court sentenced Black.

(DE #23).

There were two objections to the Guideline calculation set forth in
the Presentence Report (see DE #17).

Black objected to the

application of an enhancement for obstruction of justice and the
denial

of

acceptance

of

responsibility.

(Id.).

The

Court

overruled the objections. The Government recommended a sentence of

6

10 years as agreed to in the plea agreement.

This Court sentenced

Black to imprisonment for 120 months. (DE ## 23-24). Judgment was
entered on November 18, 2013.

(DE #24).

Black did not appeal his

sentence.
Black filed the instant motion under section 2255 on September
8, 2014, setting forth several arguments, as follows: (1) that the
Government breached the plea agreement when they admitted a letter
Black sent to his former employer at sentencing to demonstrate
obstruction of justice; (2) that his counsel was ineffective for
failing to object to the letter and failing to withdraw his plea
agreement after the Government breached the plea agreement by
introducing the letter into evidence; (3) that his counsel was
ineffective for failing to object to the obstruction of justice
enhancement under U.S.S.G. § 3C1.1; and (4) this Court erred by
imposing an obstruction of justice enhancement under U.S.S.G. §
3C1.1 and denying Black acceptance of responsibility.

(DE #27).

In response, the Government contends that all of Black’s arguments
were waived, and even if they were not waived, they fail on the
merits.

(DE #32).

This motion is fully briefed and ripe for

adjudication.

DISCUSSION
Habeas corpus relief under 28 U.S.C. section 2255 is reserved
for "extraordinary situations."

Prewitt v. United States, 83 F.3d

7

812, 816 (7th Cir. 1996).

In order to proceed on a habeas corpus

motion pursuant to 28 U.S.C. section 2255, a federal prisoner must
show that the district court sentenced him in violation of the
Constitution or laws of the United States, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject
to collateral attack.
A

section

2255

Id.
motion

is

neither

recapitulation of a direct appeal.

a

substitute

for

nor

Id.; Belford v. United States,

975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).

As a

result:
[T]here are three types of issues that a
section 2255 motion cannot raise: (1) issues
that were raised on direct appeal, absent a
showing
of
changed
circumstances;
(2)
nonconstitutional issues that could have been
but were not raised on direct appeal; and (3)
constitutional issues that were not raised on
direct appeal, unless the section 2255
petitioner
demonstrates
cause
for
the
procedural default as well as actual prejudice
from the failure to appeal.
Belford, 975 F.2d at 313.

Additionally, aside from demonstrating

"cause" and "prejudice" from the failure to raise constitutional
errors

on

direct

appeal,

a

section

2255

petitioner

may

alternatively pursue such errors after demonstrating that the
district court's refusal to consider the claims would lead to a
fundamental miscarriage of justice.
F.3d 1174, 1177 (7th Cir. 1996).

8

McCleese v. United States, 75

In assessing Black's motion, the Court is mindful of the wellsettled principle that, when interpreting a pro se petitioner's
complaint or section 2255 motion, district courts have a "special
responsibility" to construe such pleadings liberally.

Donald v.

Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996);
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (a "pro se complaint,
'however inartfully pleaded' must be held to 'less stringent
standards than formal pleadings drafted by lawyers'") (quoting
Haines v. Kerner, 404 U.S. 519 (1972)); Brown v. Roe, 279 F.3d 742,
746 (9th Cir. 2002) ("pro se habeas petitioners are to be afforded
'the benefit of any doubt'") (quoting Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985)).

In other words:

The mandated liberal construction afforded to
pro se pleadings "means that if the court can
reasonably read the pleadings to state a valid
claim on which the [petitioner] could prevail,
it should do so despite the [petitioner's]
failure to cite proper legal authority, his
confusion of various legal theories, his poor
syntax and sentence construction, or his
unfamiliarity with pleading requirements."
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (habeas
petition from state court conviction) (alterations in original)
(quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
On the other hand, "a district court should not 'assume the role of
advocate for the pro se litigant' and may 'not rewrite a petition
to include claims that were never presented.'"

Id.

Here, the

Court assessed Black’s claims with these guidelines in mind.

9

Waiver
The Seventh Circuit has recognized the validity of plea
agreement waivers and will enforce the waiver unless there is a
claim that the waiver was entered into involuntarily or that the
waiver was a result of the ineffective assistance of counsel during
the negotiation of the waiver. In Jones v. United States, 167 F.3d
1142, 1145 (7th Cir. 1999), the Seventh Circuit held that only two
claims could be raised on a section 2255 motion by an individual
who waived his right to appeal:

(1) the defendant received

ineffective assistance of counsel in negotiating the waiver; or (2)
that the waiver was not knowingly and voluntarily made.

Jones

stated that courts should be:
[m]indful of the limited reach of this
holding, 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 waiver.
Id. at 1145.

In Mason v. United States, 211 F.3d 1065, 1069 (7th

Cir. 2000), the Seventh Circuit applied its holding in Jones to bar
an ineffective assistance of counsel claim that related only to the
petitioner's performance with respect to sentencing.

The Court

found that "[b]ecause the challenge has nothing to do with the
issue of a deficient negotiation of the waiver, [petitioner] has
waived

his

right

to

seek

post-conviction

relief."

Id.

Additionally, the Court stated that the following analysis should

10

be considered in determining whether a claim has been waived:
can the petitioner establish that the waiver
was not knowingly or voluntarily made, and/or
can he demonstrate ineffective assistance of
counsel with respect to the negotiation of the
waiver?
Id.
It is undisputed that in his plea agreement, Black waived his
right to appeal or contest his conviction and sentence “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 28, United States Code, Section 2255.”
(DE #3, ¶7(d)).
This Court is satisfied that Black knowingly and intelligently
waived his right to seek post-conviction relief. See, e.g., United
States v. Davis, 348 F. Supp. 2d 964, 966 (N.D. Ind. 2004)
(finding, under a similar section 2255 waiver, that defendant
knowingly and intelligently waived his right to file a section 2255
motion).

To the extent that Black now argues to the contrary,

“[s]elf-serving statements offered after the plea hearing generally
fall in the face of contradictory voluntary statements made by the
defendant during a plea hearing - the latter are presumed to be
true.”

United States v. Mosley, No.

93-1829, 1994 WL 503016, at

*3 (7th Cir. Sept. 14, 1994) (citing, inter alia, United States v.
Scott, 929 F.2d 313, 315 (7th Cir. 1991) (“To allow [defendant] to

11

withdraw his plea because of secret expectations that he harbored
in the face of his directly contradictory sworn testimony would
undermine the strong societal interest in the finality of guilty
pleas.”)).

As set forth by the Court earlier in this opinion,

Black repeatedly testified during his hearing that he was satisfied
with

his

counsel’s

performance,

that

he

was

knowingly

and

voluntarily pleading guilty, and that he understood the charges
against him and the possible sentence he was facing.

As such, the

Court is satisfied that he knowingly and intelligently entered into
the plea agreement.
Furthermore, none of Black’s claims of ineffective assistance
relate directly to the waiver or its negotiation.

Instead, his

claims relate exclusively to the promises the Government made as
part of the plea agreement, and Black’s contention that the
Government

breached

those

promises,

that

his

counsel

was

ineffective following that breach, and that this Court erred in
calculating his guidelines by finding that he both obstructed
justice

and

failed

to

accept

responsibility

for

his

crime.

Accordingly, each and every one of Black’s arguments are waived.

Black’s Claims Fail on the Merits
Each of Black’s arguments depend on his assumption that the
plea agreement he signed prevented the Government from pursuing
and/or

the

Court

from

imposing

12

penalties

for

obstruction

of

justice.2

Black, however, has produced no evidence that the

Government breached the plea agreement. The Government only agreed
not to bring additional charges.
charges.
from

They did not bring additional

Nothing in the plea agreement precluded the Government

arguing

in

favor

obstruction of justice.

of

a

sentencing

enhancement

based

on

Furthermore, Black received the sentence

that he and the Government agreed was fair and reasonable under the
circumstances.
Black argues that his counsel was ineffective for failing to
object to the admission of the threatening letter, but counsel did
object to the Court’s reliance on the letters. He also argues that
counsel was ineffective for failing to withdraw the plea agreement
following the Government breach.

The Government, however, did not

breach the plea agreement, and counsel cannot be deemed ineffective
for failing to seek to withdraw the plea agreement on that basis.
Black also argues that counsel was ineffective for failing to
object to the obstruction enhancement, but counsel did object.
Finally, Black has produced no evidence that this Court
committed clear error when it determined that an enhancement was
warranted for obstruction of justice and that Black was not
entitled to acceptance of responsibility. Furthermore, because the
Government and Black agreed that a sentence of 10 years was
2

This includes his arguments regarding acceptance of
responsibility, because the obstruction provided the basis for
denial of acceptance of responsibility.
13

reasonable, fair, and appropriate, and the Court imposed the
sentence that the parties agreed upon, any error was harmless.

Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must “issue or deny a certificate of
appealability
applicant.”

when

it

enters

a

final

order

adverse

to

the

A certificate of appealability may issue only if the

applicant “has made a substantial showing of the denial of a
constitutional right.”

28 U.S.C. § 2253(c)(2).

To make such a

showing, a defendant must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the motion 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) (internal

quotation marks and citation omitted).
For the reasons set forth above, Black has not stated any
grounds for relief under section 2255.
for

a

determination

decision

debatable

that
or

reasonable

incorrect

encouragement to proceed further.
appealability will not be issued.

14

or

The Court finds no basis
jurists
that

the

would

find

issues

this

deserve

Therefore, a certificate of

CONCLUSION
For the aforementioned reasons, Black’s section 2255 motion is
DENIED without a hearing.
case WITH PREJUDICE.

The Clerk is ORDERED to DISMISS this

The Clerk is ORDERED to distribute a copy of

this order to George James Black, #12653-027, Greenville FCI,
Federal Correctional Institution, Inmate Mail/Parcels, P.O. Box
5000, Greenville, IL 62246, or to such other more current address
that may be on file for the Petitioner.

Further, this Court

declines to issue Defendant a certificate of appealability.

DATED: February 17, 2016

/s/ RUDY LOZANO, Judge
United States District Court

15