LAFAVERS v. USA

Filing 9

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255) and Denying Certificate of Appealability - For the reasons explained in this Entry, the motion of Keven LaFavers for relief pursuant to 28 U.S.C. § 2255 must be denied and the actio n dismissed with prejudice. In addition, the court finds that a certificate of appealability should not issue. The motion for relief pursuant to § 2255 is therefore DENIED. Judgment consistent with this Entry shall now issue. The court therefore DENIES a certificate of appealability. (copy to Movant via US Mail). Signed by Judge Jane Magnus-Stinson on 10/6/2011. (JKS) Modified on 10/7/2011 (JKS).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
KEVEN M. LAFAVERS,
Movant,
vs.
UNITED STATES OF AMERICA.

)
)
)
)
)
)

1:11-cv-131-JMS-MJD

Entry Discussing Motion for Relief Pursuant to 28 U.S.C. ' 2255
and Denying Certificate of Appealability
For the reasons explained in this Entry, the motion of Keven LaFavers for relief
pursuant to 28 U.S.C. ' 2255 must be denied and the action dismissed with prejudice.
In addition, the court finds that a certificate of appealability should not issue.
I. The ' 2255 Motion
A motion pursuant to 28 U.S.C. ' 2255 is the presumptive means by which a
federal prisoner can challenge his conviction or sentence. See Davis v. United States,
417 U.S. 333, 343 (1974). LaFavers has filed such a motion, asserting that his sentence
and restitution order were based on false loss amounts presented by the government,
and that his counsel was ineffective in failing to verify the government=s alleged loss
calculation.
Charges of conspiracy to commit wire fraud and wire fraud brought against
LaFavers in No. 1:09-cr-114-JMS-KPF-02 were resolved through the submission and
acceptance of his plea agreement with the United States. LaFavers agreed to plead
guilty to both counts and did so in a hearing conducted on October 9, 2009. In addition,
the plea agreement provided that LaFavers expressly waived his right to appeal his
conviction and sentence on any ground and expressly agreed not to contest his
sentence or the manner in which it was determined in any collateral attack, including but
not limited to, an action brought under 28 U.S.C. ' 2255.
The court accepted LaFavers= plea, finding that it complied with the requisites of
Rule 11 of the Federal Rules of Criminal Procedure. In doing so, the court found that
LaFavers was entering his plea of guilty knowingly and voluntarily, and he understood
the consequences of his plea. On February 2, 2010, the court sentenced LaFavers to a
term of 33 months imprisonment on each count to be served concurrently, to be
followed by an aggregate term of three years of supervised release. He was also
ordered to pay $1,475,851.63 in restitution and was assessed the mandatory
assessment of $200. Judgment was entered on the docket on February 18, 2010. No
direct appeal was filed with respect to the disposition of the case.

The government argues that LaFavers= ' 2255 motion is barred by the waiver of
post-conviction relief rights found in the written plea agreement. LaFavers responds that
counsel was ineffective in allowing LaFavers to enter into a guilty plea containing
inaccurate loss amounts which determined the amount of restitution he was ordered to
pay.
LaFavers contends that the only alleged victim, Argent Mortgage Company,
incurred no loss because a majority of the mortgages at issue were assigned to other
lenders for full value. He argues that counsel should have realized this and that absent
counsel=s error, LaFavers= sentence would have fallen within a range of zero to six
months and no restitution and no forfeiture. He asserts that, therefore, because the loss
calculation was false and inaccurate, and because of ineffective assistance of counsel,
his plea waiver could not have been knowingly and voluntarily made.
The Seventh Circuit has recognized the validity of waivers such as that included
in the plea agreement in this case and will enforce the waiver unless there is a claim
that the plea agreement/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) the waiver was not knowingly and voluntarily made.
Jones states that courts should be A[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. See also Mason v. United
States, 211 F.3d 1065, 1069 (7th Cir. 2000) (because the ineffective assistance of
counsel challenge relating to sentencing had nothing to do with the issue of a deficient
negotiation of the waiver, the petitioner waived his right to seek post-conviction relief).
Additionally, in Mason, the court stated that the following analysis should be considered
in determining whether a claim has been waived: A[C]an 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.
As far as LaFavers= claim of ineffective assistance of counsel is concerned, his
theory is not supported by the mortgage assignments he has submitted. LaFavers
contends that Argent Mortgage Company received the full amount of the promissory
note from either Ameriquest Mortgage Company or Wells Fargo each time it assigned a
mortgage. To the contrary, each assignment was completed within days of the original
transaction and each indicates that Argent Mortgage Company assigned or sold Afor
value received@ a certain indenture of mortgage to Ameriquest Mortgage Company or
Wells Fargo. The amounts of the mortgage are reflected on each assignment, but not
as the amount received by Argent Mortgage from the assignee. The amount of any
Avalue received@ is not specified on the assignments. The entire basis of LaFavers=
motion to modify the amount of his restitution is unfounded. Therefore, LaFavers has
shown no ineffective assistance of counsel as it relates to his plea agreement.

Accordingly, the waiver provision must be enforced and his ' 2255 motion is barred.
LaFavers= claims are also barred because of an even more fundamental
obstacle. His ' 2255 motion is a challenge to the amount of fraud loss applied in his
case, which he contends resulted in an unlawful sentence and amount of restitution. A
district court lacks jurisdiction to modify a sentence unless authorized by specific statute
or rule. United States v. Goode, 342 F.3d 741, 743 (7th Cir. 2003). To the extent
LaFavers challenges the amount of his restitution, the court lacks jurisdiction. A ' 2255
motion is unavailable to challenge a restitution order imposed as part of a criminal
sentence. Barnickel v. Unites States, 113 F.3d 704 (7th Cir. 1997) (section 2255 does
not provide redress when challenging a fine rather than custody). LaFavers= attempt to
have the amount of restitution he must pay reduced through his ' 2255 motion fails on
this basis as well.
The foregoing circumstances show that LaFavers is not entitled to relief pursuant
to 28 U.S.C. ' 2255. The motion for relief pursuant to ' 2255 is therefore denied.
Judgment consistent with this Entry shall now issue.
II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing ' 2255 Proceedings, and 28 U.S.C. ' 2253(c), the court finds that LaFavers
has failed to show that reasonable jurists would find Ait debatable whether the petition
states a valid claim of the denial of a constitutional right@ and Adebatable whether [this
court] was correct in its procedural ruling.@ Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The court therefore denies a certificate of appealability.
IT IS SO ORDERED.
10/06/2011
Date: __________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana