United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
RUDY LOZANO, District Judge.
This matter is before the Court on the: (1) Motion To Vacate, Correct, or Set Aside The Petitioner's Sentence Pursuant to 28 U.S.C. § 2255, filed by pro se Petitioner, Jack Schaap, on March 19, 2014 (DE #45); and (2) Amended Motion to Vacate, Correct, or Set Aside The Petitioner's Sentence Pursuant to 28 U.S.C. § 2255, filed by counsel, on June 2, 2014 (DE #55). For the reasons set forth below, the section 2255 motion (DE #45) is DENIED AS MOOT. The Amended Motion to Vacate, Correct, or Set Aside Petitioner's Sentence (DE #55) is DENIED. Schaap's request for an evidentiary hearing is also DENIED. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE. Additionally, the Court DECLINES to issue a certificate of appealability. The Clerk is FURTHER ORDERED to distribute a copy of this order to Jack Allen Schaap, #XXXXX-XXX, Ashland FCI, Inmate Mail/Parcels, P.O. Box 6001, Ashland, Kentucky 41105, or to such other more current address that may be on file for the Petitioner.
On September 18, 2012, an information was filed against Defendant, Jack Allan Schaap. (DE #1.) Count 1 alleged transporting a minor in interstate commerce with intent to engage in sexual activity for which any person can be charged with a crime, in violation of 18 U.S.C. § 2423(a).
The same day the information was filed, Defendant and the Government entered into a plea agreement and filed it with the Court. (DE #2.) In the plea agreement, Schaap agreed to waive his right to indictment by a federal grand jury, and agreed to plead guilty to the charge set forth in the Information. ( Id. ¶¶ 2, 7(a).) The plea agreement, signed by Schaap, specifically set forth the statutory mandatory minimum sentence of 10 years imprisonment Schaap faced, and the maximum possible term of life imprisonment:
I understand that the statutory mandatory minimum term of incarceration for my conviction of the offense charged in Count 1  is ten (10) years imprisonment and the maximum possible term of imprisonment I face is a lifetime term, followed by a minimum of five (5) years of supervised release and a maximum term of up to lifetime supervised release following my incarceration.
( Id. ¶ 7(b).) The plea also set forth agreements reached by the parties, including that the Government agreed based upon the facts of the case that "a sentence of 120 months incarceration is a fair and reasonable sentence in this case." ( Id., ¶ 7(d)(iii).) Additionally, the plea agreement provided that the sentencing "agreements  are not binding upon the Court...." ( Id. ¶ 7(d) (emphasis in original).)
The plea agreement also contained an appellate waiver. Specifically, the document set forth in pertinent part:
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 offenses 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 or the sentence imposed, including the manner in which my conviction or 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 an 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.
( Id. ¶ 7(e).)
Schaap's change of plea hearing was held on September 26, 2012. ( See transcript, DE #47.) Schaap was placed under oath at the beginning of the hearing. (DE #47, p. 3.) He was represented at the hearing by the same counsel who signed his plea agreement, attorneys Paul Stracci and Alison Benjamin. The Court began by asking Schaap if he was "fully satisfied with the counsel, representation and advice given to [him] in this case by Mr. Stracci and Ms. Benjamin as [his] attorneys?" and he replied, "[y]es, I am." ( Id., p. 7.) The Court then asked Schaap to read his plea agreement in Court, he also affirmed that he read it earlier with his attorneys, and he understood and agreed with the plea agreement. ( Id., p. 9.) The Court reviewed the maximum and minimum amounts of jail time Schaap could receive, and also confirmed that Defendant understood that the Court would ultimately decide Defendant's sentence, and that the Guidelines were not binding. ( Id., pp. 14-17, 26, 34-36.) The Court also confirmed that no one, including his lawyer, made him any predictions or promises as to what his precise sentence would be. ( Id., p. 36.)
Probation prepared a Presentence Report ("PSR") prior to Schaap's sentencing hearing. (DE #30.) With credit for acceptance of responsibility, Defendant had a total offense level of 35. ( Id., p. 23.) With a criminal history computation of 0, the PSR calculated his Guideline range between 168 and 210 months. ( Id., pp. 23, 33.) The Court confirmed at the sentencing hearing that Schaap had received and reviewed the PSR and addendum with his counsel. (DE #44, p. 4.)
Defendant filed a sentencing memorandum, attaching letters in support, and requesting a below-Guidelines sentence of 120 months. (DE #19, p. 1.) Schaap's own memorandum concedes that "[a] violation of § 2423(a) carries a mandatory minimum 10 year term (120 months) of imprisonment up to a lifetime of imprisonment." Id. The Government also filed a sentencing memorandum, also asking the Court for the agreed upon recommendation of a ten-year period of incarceration. (DE #37, p. 1.) There were no objections to the PSR. (DE ##31, 32.)
The Court held the sentencing hearing on March 20, 2013, and sentenced Schaap to a term of imprisonment of 144 months, which was below the Guideline range. (DE #39.) At the hearing, both sides urged the Court to follow the parties' sentencing recommendation of 120 months. (DE #44, pp. 9-11; 40-42.) Judgment was entered later that day on March 20, 2013. Schaap did not file a direct appeal with the Seventh Circuit.
Schaap filed a motion under section 2255 on March 19, 2014 (DE #45). He also filed a letter asking for additional time to "fil[e] an addendum to the motion, including the memorandum of law." (DE #46.) This Court granted the extension of time, ordering Schaap to file a memorandum by June 2, 2014. (DE #48.) On June 2, 2014, Schaap, through his new counsel, Charles Alex Murray, filed his memorandum in support. (DE #52.) Also on June 2, 2013, Schaap, through his counsel, filed what they entitled "Amended Motion to Vacate, Correct, or Set Aside the Petitioner's Sentence Pursuant to 28 U.S.C. § 2255." (DE #55.) The Amended Motion (DE #55) is almost identical to Schaap's initial motion under section 2255 (DE #45). The memorandum in support of the amended motion to vacate (DE #56) is identical to the memorandum at DE #52. As such, this Court DENIES the Motion to Vacate (DE #45) as MOOT, and will rule upon the Amended Motion to Vacate (DE #55).
The Court will consider the arguments set forth in this memorandum. Schaap articulates four main arguments: (1) the collateral review waiver in the plea agreement does not preclude his challenges; (2) he was denied effective assistance of counsel when his counsel promised him a sentence between 18 and 120 months; (3) he was denied effective assistance of counsel when "he was sentenced as a fully culpable offender, despite the presence of factors reducing Petitioner's culpability"; and (4) counsel was ineffective when he "failed to object to the district court's misunderstanding of its ability to vary from the Guidelines." (DE #55, p. 6.) The Government filed a response to the amended memorandum on July 3, 2014 (DE #58), and Schaap filed a reply on August 11, 2014 (DE #62). As such, this motion is fully briefed and ready for adjudication.
Habeas corpus relief under 28 U.S.C. section 2255 is reserved for "extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). In order to proceed on a habeas corpus petition 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. Id.
A section 2255 motion is neither a substitute for nor recapitulation of a direct appeal. 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. McCleese v. United States, 75 F.3d ...