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 by a Person in Federal Custody [ECF No. 33] filed on April 2, 2012. The Defendant, who is now proceeding pro se, contends that his attorney rendered ineffective assistance of counsel because he failed to notify the Defendant during plea negotiations that his federal sentence would not run concurrently with a separate sentence on a pending charge in state court. For the reasons set forth in this Opinion and Order, the Defendant's Motion will be denied.
On March 24, 2010, a federal grand jury returned a two count Indictment [ECF No. 1] against the Defendant, charging him with a violation of 21 U.S.C. § 846 for conspiring to distribute 50 grams or more of methamphetamine, a Schedule II Controlled Substance; and violations of 18 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 for distributing 50 grams or more of methamphetamine, a Schedule II Controlled Substance, or aiding and abetting the same. On March 25, 2010, the Defendant's request for appointment of counsel was granted. [ECF No. 7] and an appearance of counsel was entered by Thomas N. O'Malley on behalf of the Defendant. [ECF No. 8.]
On June 9, 2010, the Defendant and the Government filed a Plea Agreement in which the Defendant agreed to plead guilty to Count 2 of the Indictment charging him with violations of 18 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 in exchange for the dismissal of Count 1 of the Indictment charging him with a violation of 21 U.S.C. § 846. (Plea Agr. ¶ 8(a) & 8(d), ECF No. 15.) The Plea Agreement contained the Defendant's acknowledgment that the Court would determine an appropriate sentence:
I understand that under the U.S. Sentencing Guidelines, the Court, in light of an investigation by the United States Probation Office, will determine the applicable sentencing guideline range, and that the Court will determine all matters, whether factual or legal, relevant to the application of the U.S. Sentencing Guidelines. I understand that the U.S. Sentencing Guidelines are advisory only, and that the specific sentence to be imposed upon me will be determined by the judge after a consideration of a pre-sentence investigation report, input from counsel for myself and the government, federal sentencing statutes, and the U.S. Sentencing Guidelines.
(Plea Agr. ¶ 7, ECF No. 15.) The Plea Agreement contained no reference to the Defendant's state sentence. The Plea Agreement also contained the following waiver:
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 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 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.
(Plea Agr. ¶ 8(e)).
On June 23, 2010, the Court conducted a change of plea hearing, at which the Defendant, pursuant to the Plea Agreement, pled guilty to Count 2 of the Indictment. [ECF No. 18.] Because the Defendant reads, writes, and speaks the Spanish language, the hearing was interpreted by a sworn and court-certified interpreter.
Prior to accepting the Defendant's plea, the Court swore the Defendant and made detailed inquiry into his competence to plead, the voluntariness of his plea, and his understanding regarding specific terms of the Plea Agreement. The Court found that the Defendant was fully competent and capable of entering an informed plea, that the Defendant was aware of the charges and the consequences of the plea, and that the plea of guilty was knowing and voluntary, and supported by an independent basis in fact containing each of the essential elements of the offense. The Court also inquired as to the binding terms of the Plea Agreement. The Court specifically inquired regarding (1) the Defendant's waiver of his right to appeal his conviction, sentence, and any restitution order imposed or the manner in which his conviction, sentence, or restitution order was determined or imposed; (2) his waiver of his right to collaterally attack through a habeas corpus petition his conviction, sentence, or restitution order and the manner by which his conviction, sentence, or restitution order was imposed; and (3) his waiver of his right to claim ineffective assistance of counsel (except as to ineffectiveness directly involving the appellate waiver or its negotiation). During the hearing colloquy, the Defendant affirmed his understanding of all terms contained within the Plea Agreement. Accordingly, the Court accepted the plea and adjudged the Defendant guilty of the offense.
On October 4, 2010, the Court sentenced the Defendant to 87 months imprisonment for Count 1. [ECF No. 26.] The Defendant's sentence became final on October 18, 2010. At the time of his federal sentencing, the Defendant was facing a pending charge in state court for separate conduct involving illegal drugs. The state charge was based on conduct occurring between December 2009 and March 2010. The Defendant was sentenced in state court on July 8, 2011.
On April 2, 2012, the Defendant filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 33]. On April 16, 2012, the Government filed a Response to the Motion Under 28 U.S.C. § 2255 [ECF No. 35]. On May 3, 2012, the Defendant filed a Reply to the Government Opposition [ECF No. 36].
A court may grant relief from a federal conviction or sentence pursuant to § 2255 "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). "[R]elief is appropriate only for an error of law that is jurisdictional, constitutional, or ...