United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN, District Judge.
This matter is before the Court on the Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [ECF No. 49], filed on April 14, 2011. In that Motion the Defendant claims ineffective assistance of counsel prior to and during plea negotiations. The Defendant claims that his counsel was ineffective for failing to advise him of the distinction between crack cocaine and cocaine base, and also for failing to explain the difference between actual and constructive possession of a firearm, and that these deficiencies caused his plea to be unknowing and involuntary. The Government filed a Response [ECF No. 51] and the Defendant filed a Pro Se Reply [ECF No. 58]. The Defendant then filed an additional brief, titled as a Motion for Leave to Expand the Record Pursuant to Rule 7 of the Rules Governing Section 2255 [ECF No. 62]. In this Motion, the Defendant expands on his previous arguments related to the gun charge and asserts a new claim. The Government responded to this Motion as well. For the reasons set forth below, the Court finds that the record conclusively shows that the Defendant is not entitled to relief.
The Defendant was originally charged in a five count indictment. Counts 1 and 2 alleged two separate instances of distributing five grams or more of cocaine base, commonly known as crack cocaine. These two counts were based on controlled buys, in which an informant acting under police instruction bought cocaine base from the Defendant. Count 3 alleged that the Defendant possessed five grams or more of cocaine base, and also ecstasy, both with intent to distribute. Count 4 alleged possession of a firearm in furtherance of a drug trafficking crime. Count 5 alleged possession of a firearm as a convicted felon.
The Defendant entered into a Plea Agreement with the Government [ECF No. 29]. In paragraph 8(a) of the Plea Agreement, the Defendant agreed to plead guilty to Counts 3 and 4 "because I am, in fact, guilty of these offenses." In paragraph 8(d), the Defendant and the Government agreed to a total sentence of 120 months imprisonment for Counts 3 and 4, with 60 months on Count 3 and a consecutive 60 months on Count 4. Also in paragraph 8(d), the Defendant acknowledged that he was getting a substantial sentencing benefit from the Government because the government agreed not to file the enhancement pursuant to 21 U.S.C. § 851. The Plea Agreement advised of the potential penalties, including that 120 months was the minimum total sentence possible on Counts 3 and 4. The Defendant agreed to waive his right to appeal and his right to file a collateral attack through any postconviction proceeding, including a proceeding under 28 U.S.C. § 2255.
On March 11, 2010, the Defendant participated in a change of plea hearing. At the plea hearing, the Defendant stated that he understands, reads, and writes English. (Plea Hr'g Tr., ECF No. 56 at 5.) The Defendant has a high school education equivalency and has completed a semester of college. ( Id. ) The Defendant stated he had no history of mental illness; that he was not under the influence of alcohol or drugs; that he had never been treated for a drug addiction; and that he had not been promised anything that was not found in the written Plea Agreement, a copy of which he had before him at the time. ( Id. ) He was expressly reminded that he could consult counsel off the record at any point during the hearing. ( Id. at 3-4.) The Defendant acknowledged more than once at the hearing that he understood he was agreeing to plead guilty to Counts 3 and 4. ( Id. at 10, 11). He acknowledged that he was in fact guilty of Counts 3 and 4, and he recounted his conduct that satisfied all the essential elements of those two offenses. ( Id. at 22-26). He stated that he understood that the Government would recommend a total sentence of 120 months imprisonment in exchange for his pleading guilty to Counts 3 and 4, which he understood was the statutory mandatory minimum sentence for those charges. ( Id. at 11.) The Defendant stated that he understood that Counts 1, 2, and 5 would be dismissed, and that the dismissal of those counts resulted in a substantial sentencing benefit. The Court also discussed paragraph 8(f) of the Agreement, in which the Defendant agreed to waive all appeals and postconviction remedies as part of his guilty plea. The Court explained that waiver provisions are "generally upheld to be valid." ( Id. at 19). The Court also explained that the waiver provision barred claims of ineffective assistance of counsel, except those that relate directly to the waiver provision or its negotiation. ( Id. )
At sentencing, the Court accepted the plea agreement and sentenced the Defendant to a total of 120 months imprisonment pursuant to the binding term in the Plea Agreement, 60 months on Count 3 and a consecutive 60 months on Count 4. The remaining counts were dismissed pursuant to the Plea Agreement. The Defendant did not file a direct appeal.
The Defendant now collaterally attacks his conviction and sentence. In his habeas Motion, the Defendant asserts that his trial counsel provided ineffective assistance when he failed to explain the difference between cocaine base and crack cocaine, and when he failed to inform the Defendant of the law relevant to 18 U.S.C. § 924(c). He submits that had his counsel correctly advised him concerning the law, he would have proceeded to trial, believing that he is actually innocent of the charges.
The Government argues that the Defendant knowingly and voluntarily agreed to the terms of the Plea Agreement, which contains a waiver of all appeals and all petitions for postconviction relief, including those based on ineffective assistance of counsel unless the alleged ineffective assistance had to do with negotiating or explaining the waiver provision itself. In addition to invoking the waiver, the Government's Response provides substantial argument related to the terms of the Plea Agreement, the Defendant's statements during the change of plea hearing, and the factual basis for the charges.
In his Reply the Defendant reiterates his argument that his counsel was deficient for failing to advise him of the difference between crack cocaine and cocaine base. He contends that the Government would not have been able to prove that the substance recovered from his dresser drawer was crack cocaine, as opposed to cocaine base. He maintains that had his counsel properly advised him about the distinction between actual and constructive possession of a firearm, the Defendant would have realized that he did not possess the firearm in violation of 18 U.S.C. § 924(c). In this Motion to Expand the Record, he asserts for the first time that it was counsel's failure to properly advise him about the "in furtherance of" element of the firearm offense that led him to plead guilty to an offense for which his conduct does not satisfy. The Defendant appears to contend that he did not possess the firearm in furtherance of his drug activity, but merely possessed it. The Defendant also alleges that the Plea Agreement he signed was different from the Plea Agreement accepted by this Court. Specifically, he claims that he was promised that he would receive the benefit of retroactive application of the Fair Sentencing Act of 2010, and that this was part of the written document he signed and accepted on the day he pled guilty, but that the Plea Agreement now found in the record does not contain this promise.
A. Plea Agreement Waiver
The Government argues that the Court should deny the Defendant's Motion because he waived his right to collaterally attack his sentence as part of the Plea Agreement that he voluntarily entered with the Government. The Government points to the Defendant's statements throughout the plea colloquy as evidence that his plea, and its consequences, was knowing and voluntary.
A plea agreement is a type of contract subject to contract law principles tempered by limits that the Constitution places on the criminal process. See United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005). Courts "enforce a plea agreement's appellate waiver if its terms are clear and unambiguous and the record shows that the defendant knowingly and voluntarily entered into the agreement." United States v. Linder, 530 F.3d 556, 561 (7th Cir. 2008) (quotation marks and citation omitted). "A defendant may validly waive both his right to a direct appeal and his right to collateral review under § 2255 as a part ...