Graham v. United States of America

Filing 5

OPINION AND ORDER denying the Petition pursuant to 28:2255 ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 2/24/2012. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
HENRY LEE GRAHAM,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent

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CAUSE NO. 3:11-CV-470RM
(Arising out of 3:10-CR-94(01)RM)

OPINION and ORDER
In August 2010, Henry Graham pleaded guilty to an information charging
him with making false statements on an ATF form in an attempt to acquire a
firearm in violation of 18 U.S.C. § 922(a)(6). Issues arose as to Mr. Graham’s
competency and sentencing was delayed until psychological evaluations and
treatment were completed. Mr. Graham was sentenced on October 26, 2011 to
time served (a little over twelve months), and was placed on supervised release for
a period of three years. Although Mr. Graham expressly waived his right to appeal
his conviction and sentence or to contest either in any post-conviction proceeding
in his plea agreement, he is now before the court having filed a pro se complaint
under 42 U.S.C. § 1983, in which he alleges that his criminal conviction and
sentence violated his right to bear arms under the Second Amendment.
Mr. Graham’s complaint is for all intents and purposes a motion for postjudgment relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2255 para. 1; United
States v. Evans, 224 F.3d 670, 672 (7th Cir. 2000). The court construed it as
such, and gave Mr. Graham an opportunity to withdraw the complaint or to

submit any materials he wished the court to consider. Mr. Graham didn’t object
to the proposed action or file any additional materials, but submitted an unsigned
and incomplete application to proceed without prepaying fees or costs.
For the reasons that follow, the court summarily dismisses Mr. Graham’s
petition, and denies his application to proceed without prepayment of the fees as
unnecessary. See Howliet v. United States, 2009 WL 5215597 at *1 (S.D. Ill. Dec.
30, 2009) (no fee for filing a § 2255 motion); Washington v United States, 2008 WL
1925144 at *1 (E.D. Wis. Apr. 30, 2008) (petitioner in a § 2255 proceeding not
required to submit filing fee).
The rules governing petitions filed under 28 U.S.C. § 2255 provide that once
a motion is filed,
The motion, together with all the files, records, transcripts, and
correspondence relating to the judgment under attack, shall be
examined promptly by the judge to whom it is assigned. If it plainly
appears from the face of the motion and any annexed exhibits and
the prior proceedings in the case that the movant is not entitled to
relief in the district court, the judge shall make an order for its
summary dismissal and cause the movant to be notified.
Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District
Courts.
Mr. Graham’s plea agreement reveals that he was told of and understood
the maximum sentences for the offense to which he was pleading guilty, and that
he waived his right to appeal his conviction and sentence and to contest his
conviction and sentence in a § 2255 proceeding. The plea agreement was signed

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by Mr. Graham, his attorney H. Jay Stevens, and Assistant United States Attorney
Donald Schmid and contained the following language in paragraph 9:
(b) I admit all of the following facts are true:
On 6/4/10, Henry Graham attempted to purchase a firearm
from Indiana Arms and Ammo. During the attempted purchase,
Graham falsely denied his personal drug use and falsely stated his
address on ATF form 4473. When interviewed by ATF on June 22,
2010, Graham admitted his regular marijuana use (and past use of
crack). He also admitted his false statement on the 4473 regarding
his residence address.
(c) The maximum penalites for a violation of Title 18, United
States Code, Section 922(a)(6) are: a maximum of 10 years
imprisonment, a $250,000 fine, or a combination of both
imprisonment and a fine, as well as a three-year period of supervised
release to follow any term of imprisonment, and a mandatory special
assessment of $100.
(d) I understand that the offense to which I am pleading guilty
falls under the Sentencing Guidelines promulgated by the United
States Sentencing Commission under Title 28, United States Code,
Section 994. I am aware that my sentence will be determined in
accordance with the statutory maximums listed above, the United
States Sentencing Guidelines, and this plea agreement. I agree 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 that understanding, I expressly waive my
right to appeal my conviction, my sentence and any restitution order
to any Court on any ground, including any claim of ineffective
assistance of counsel. I also agree not to contest my conviction, my
sentence, any restitution order imposed, or the manner in which my
conviction and sentence or the restitution order was determined or
imposed on anyor 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 alleged ineffective assistance
of counsel in any appeal under Title 18, United States Code, Section
3742, or in any post-conviction proceeding, including but not limited
to, a proceeding under Title 28, United States Code, Section 2255.

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Despite the waivers and admissions in his plea agreement, Mr. Graham now
challenges his conviction and sentence, contending that they violate his
constitutional right to bear arms under the Second Amendment.
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 v. United States, 211 F.3d 1065,
1069 (7th Cir. 2000), 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). Mr. Graham doesn’t challenge his conviction or sentence on any
of those grounds, and his constitutional challenge is without merit.
Mr. Graham was charged with and pleaded guilty to making false
statements on an ATF form in an attempt to acquire a firearm in violation of 18
U.S.C. § 922(a)(6). During the plea hearing, he admitted that he was an unlawful
user of a controlled substance and that he provided false information on the ATF
form about his address and drug use in an attempt to acquire a firearm. While the
Second Amendment confers an individual right of as-yet uncertain scope to keep
and bear arms for lawful purposes, see McDonald v. Chicago,

U.S.

, 130 S.Ct.

3020 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008), that right
doesn’t give a person the right to lie to acquire a firearm. See McDonald v.
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Chicago,130 S.Ct. at 3047 (acknowledging that there are presumptively lawful
regulatory measures limiting the Second Amendment right to bear arms, including
“laws imposing conditions and qualifications on the commercial sale of arms”);
District of Columbia v. Heller, 554 U.S. at 625-27 (noting that “the right secured
by the Second Amendment is not unlimited,” and that laws imposing conditions
and qualifications on the commercial sale of arms are “presumptively lawful
regulatory measures”).
Mr. Graham’s sworn statements at his change of plea hearing are presumed
to be truthful, Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir. 2000), and
the record supports a finding that his guilty plea was “a voluntary and intelligent
choice among the alternate courses of actions open to him.” Berkey v. United
States, 318 F.3d 768, 773 (7th Cir. 2003) (quoting North Carolina v. Alford, 400
U.S. 25, 31 (1970)).
Accordingly, Mr. Graham isn’t entitled to the relief he seeks, and the court
SUMMARILY DISMISSES his petition.1
SO ORDERED.
ENTERED:

February 24, 2012

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The outcome would not have been different had Mr. Graham been allowed to
proceed under 42 U.S.C. § 1983. To prevent abusive, captious or meritless litigation,
federal courts are authorized to dismiss a claim filed in forma pauperis if the action is
frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C.
§1915(e)(2). To state a viable claim under § 1983, Mr. Graham had to allege facts which,
if true, would show that the government violated his Second Amendment right to bear
arms. He has not done so.

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/s/ Robert L. Miller, Jr.
Judge
United States District Court

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