Long v. USA

Filing 1

OPINION AND ORDER: The Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is SUMMARILY DISMISSED. Signed by Judge Robert L Miller, Jr on 6/15/15. (jld) (cc: Long)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

WILLIE LONG,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent

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CAUSE NO. 3:15-CV-198 RLM
(Arising out of 3:14-CR-16 RLM)

OPINION and ORDER
Willie Long pleaded guilty to illegal possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1), and was sentenced to a term of 51 months’
imprisonment. Mr. Long is now before the court requesting that his sentence be
vacated, set aside, or corrected under 28 U.S.C. § 2255 [Doc. No. 49]. His motion
to proceed in forma pauperis [Doc. No. 50] and request for transcripts of the
September 8 motions hearing and September 29 sentencing hearing and a copy
of the Government’s response to his motion to withdraw his guilty plea [Doc. No.
48 and 52] also pend.
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) of the Rules Governing Section 2255 Proceedings for the United States
District Courts. A review of the record in this case indicates that Mr. Long’s
motions can be resolved without a hearing, see Bruce v. United States, 256 F.3d
592, 597 (7th Cir. 2001); Daniels v. United States, 54 F.3d 290, 293 (7th Cir.
1995), and without transcripts of the September 8 and September 29 hearings.1
See 28 U.S.C. § 753(f).
Mr. Long’s plea agreement reveals that he waived the right to appeal his
conviction and sentence and to contest his conviction and sentence in a § 2255
proceeding. The plea agreement was signed by Mr. Long, his attorney H. Jay
Stevens, and Assistant United States Attorney Frank Schaffer and contained the
following language in paragraph 9:
(b)

I agree with the following facts:

I hereby acknowledge that on November 18, 2013, I was driving
an automobile with a Smith & Wesson handgun in the car. I was
aware that the handgun was in the automobile. I was driving this
automobile while in St. Joseph County, Indiana. I had been convicted
of a felony in Elkhart County in 2007 in Circuit Court. I knew I was
not to possess a firearm and I do not dispute that this firearm had
traveled through interstate or foreign commerce.

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28 U.S.C. § 753(f) provides in pertinent part:
...Fees for transcripts furnished in proceedings brought under
section 2255 of this title to persons permitted to sue or appeal in forma
pauperis shall be paid by the United States out of money appropriated
for that purpose if the trial judge or a circuit judge certifies that the suit
or appeal is not frivolous and that the transcript is needed to decide the
issue presented by the suit or appeal.

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***
(e)
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 or to contest my
conviction and my sentence 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 proceeding, including but not
limited to, a proceeding under Title 28, United States Code,
Section 2255;
***
(g)
The parties make the following recommendations:
(i)The government agrees to recommend a two (2) level
reduction for acceptance of responsibility pursuant to §
3E1.1(a). The government further agrees to make a motion
under 3E1.1(b) for an additional one (1) level reduction for
acceptance of responsibility in the event defendant’s applicable
offense level is found to be a Level 16 or greater. I understand
that the government’s obligation to recommend acceptance of
responsibility pursuant of his plea agreement is contingent
upon my continuing manifestation of acceptance of
responsibility....
(h)
I further understand that the Court is not bound by any of
these recommendations and that I AM NOT ENTITLED TO
WITHDRAW THIS GUILTY PLEA if the Court decides not to accept
these recommendations.
(Emphasis in original) [Doc. No. 12].
In paragraphs 11 and 12, Mr. Long stated that he believed his attorney “had
done all that anyone could do to counsel and assist [him],” that he offered his plea
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“freely and voluntarily and of my own accord,” and that “no promises ha[d] been
made to [him] other than those contained in [the plea agreement], nor ha[d] [he]
been threatened in any way by anyone to cause [him] to plead guilty....”
Despite the waivers and admissions in the plea agreement, Mr. Long is now
before the court seeking post-conviction relief with respect to his sentence. He
contends that attorney H. Jay Stevens provided ineffective assistance when he
failed to investigate his case, to file a motion to suppress, and “to fully
explain[]...what the waiver in his plea [agreement] restricted him from doing,” and
that replacement counsel, Michael Rehak, was ineffective because he too failed to
investigate, “scared” Mr. Long into withdrawing his motion to set aside the plea
and “accepting a plea that was unjust,”and failed to argue “more mitigating
circumstances at sentencing.” Mr. Long also contends that the court erred in
applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because the
Government didn’t prove that the gun was connected to another felony offense
(possession with intent to distribute marijuana).
Mr. Long stated during the April 10, 2014 change of plea hearing that he
had read and understood the terms of the plea agreement, that he had discussed
the plea agreement with Mr. Stevens before the plea hearing, that he understood
he was giving up his right to appeal or otherwise challenge his sentence, and that
he was satisfied with the representation Mr. Stevens had provided. He also stated
under oath that no one had threatened or forced him to plead guilty, or had made

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any promises, other than those contained in the plea agreement, as to what his
sentence would be.
Mr. Long’s sworn statements at the 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)). The plea agreement clearly and unambiguously sets forth the
waiver of Mr. Long’s right to appeal and to file a § 2255 petition, the waiver was
explained to him during the plea colloquy, and he acknowledged that he
understood. Because Mr. Long’s plea was informed and voluntary, the waiver of
his right to appeal or to file a § 2255 petition “must be enforced.” Nunez v. United
States, 546 F.3d 450, 453 (7th Cir. 2008).
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 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),
or when a defendant claims the waiver was involuntary or counsel was ineffective
in negotiating the waiver, Mason v. United States, 211 F.3d 1065, 1069 (7th Cir.

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2000). Only one of Mr. Long’s arguments falls within those limitations–his claim
that he didn’t knowingly waive his right to contest his sentence because Mr.
Stevens didn’t explain what the waiver provision meant and so was ineffective. The
record clearly demonstrates otherwise.
To prevail on [his] ineffective assistance claim, [Mr. Long] must
demonstrate that [his] counsel’s performance fell below an objective
standard of reasonableness, and that “the [alleged] deficient
performance prejudiced the defense.” In order to satisfy the prejudice
prong, [Mr. Long] must establish that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.”
Taylor v. Bradley, 448 F.3d 942, 948 (7th Cir. 2006) (quoting Strickland v.
Washington, 466 U.S. 668, 687-688, 694 (1984)). “Prejudice in the context of a
guilty plea requires a showing that but for counsel’s deficient performance, [Mr.
Long] would not have pleaded guilty.” Galbraith v. United States, 313 F.3d 1001,
1008 (7th Cir. 2002).
Mr. Long’s belated assertions that he might have elected to proceed to trial
had Mr. Stevens not assured him the § 2K2.1(b)(6)(B) enhancement wouldn’t apply
and had Mr. Rehak not “scared” him into withdrawing his motion to set aside the
plea are based on hindsight and are inconsistent with verified statements he made
in his plea agreement and during the plea hearing. Mr. Long was consistently and
repeatedly advised in the plea agreement and during the plea hearing that the
court, not the attorneys, would determine the sentence, and that he was waiving

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his right to challenge his conviction and sentence by pleading guilty to the charge,
as demonstrated by the following excerpt:
THE COURT: ...So if, in the end, you receive a sentence
that is more severe than what you though you were
going to get, maybe more severe than what your attorney
told you or argued to the Court, maybe more severe than
what the Sentencing Guidelines may recommend, and
even more severe than, perhaps, what the Government
is seeking, you’ll not be able to withdraw your guilty
plea...and you’ll not be able to appeal...Do you
understand?
MR. LONG: Yes, your Honor.
[Doc. No. 34 at pp. 15-16].
Mr. Long doesn’t challenge his conviction or seek a new trial. He simply
wants a lower sentence–one that isn’t enhanced under U.S.S.G. § 2K2.1(b)(6)(B),
but gives him the benefit of a three-level reduction for acceptance of responsibility
under U.S.S.G. § 3E1.1. The relief he seeks isn’t available. Mr. Long knowingly
and voluntarily waived his right to contest his conviction and sentence and the
manner in which they were determined, and, for the reasons stated, can’t prevail
on his claim that counsel provided ineffective assistance in relation to the
negotiation of the plea.
Accordingly, Mr. Long’s motion to vacate his sentence under 28 U.S.C. §
2255 [Doc. No. 49] is SUMMARILY DISMISSED, and the motion to proceed in
forma pauperis [Doc. No. 50] and request for transcripts [Doc. No. 48 and 52] are
DENIED as unnecessary.

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SO ORDERED.
ENTERED:

June 15, 2015

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

cc:

W. Long
AUSA Schaffer

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