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Campbell v. United States

United States District Court, S.D. Indiana, Indianapolis Division

May 2, 2017

LON CAMPBELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY

          TANYA WALTON PRATT, JUDGE

         For the reasons explained in this Entry, the motion of Lon Campbell (“Mr. Campbell”) 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

         Background

         On September 10, 2013, Mr. Campbell was charged in a multi-defendant Indictment filed in the Southern District of Indiana in No. 1:13-cr-185-TWP-DML-18. Mr. Campbell was charged in Count 22 with use of a false social security number with intent to deceive, in violation of 42 U.S.C. § 408(a)(7)(B).

         On October 10, 2014, Mr. Campbell filed a Petition to Enter a Plea of Guilty. No. 1:13-cr-185-TWP-DML-18; dkt. 541. In the Petition, Mr. Campbell represented to the Court that he received a copy of the Indictment, read and discussed it with his attorney, understood the charges brought against him, and believed that his attorney was fully informed as to the facts surrounding the Indictment. He stated that his attorney had advised him of the punishment, and that he believed that his attorney had done all that anyone could do to counsel and assist him. Mr. Campbell made no claim of innocence and declared that his plea of guilty was offered freely, voluntarily, and of his own accord. Id.

         On that same date, a plea agreement was filed pursuant to Federal Rules of Criminal Procedure 11(c)(1)(B). No. 1:13-cr-185-TWP-DML-18; dkt. 540. The parties agreed that Mr. Campbell would plead guilty to Count 22 as charged in the Indictment. Id. Mr. Campbell also agreed to admit to Supervised Release Violation 1 as alleged in the Supplemental Petition for Violation of Supervised Release in No. 1:07-cr-095-TWP-TAB. Id. The government agreed to recommend a sentence at the low end of the guidelines calculation and to dismiss the remaining six violations in the Petition for Violation of Supervised Release. Id. In exchange for the concessions made by the United States, Mr. Campbell agreed to waive his right to appeal his conviction and sentence and to waive any collateral attack against his conviction and sentence, including an action brought under 28 U.S.C. § 2255. Dkt. 540, ¶ 7. The parties also filed a Stipulated Factual Basis, which Mr. Campbell signed, providing the facts of this case. No. 1:13-cr-185-TWP-DML-18; dkt. 542.

         On January 21, 2015, the Court held a change of plea and sentencing hearing. No. 1:13-cr-185-TWP-DML-18; dkt. 635; dkt. 677. During the plea hearing, the Court advised Mr. Campbell of his rights and the possible penalties and accepted the parties' stipulated factual basis as an adequate basis for the plea. Id. The Court found that Mr. Campbell's plea was made voluntarily and knowingly, accepted his guilty plea, and adjudged him guilty of Count 22 as charged in the Indictment. Id. Mr. Campbell also admitted to the supervised release violation and the Court found that he violated his supervised release. Id.

         The Court then held Mr. Campbell's sentencing hearing. Id. Mr. Campbell's advisory guideline range was 21-27 months and he was sentenced to the guideline minimum of 21 months' imprisonment on Count 22. Mr. Campbell's violation 1(committing a new offense) is a Grade B violation and carries a range of imprisonment of between 12 and 18 months, consecutive to any other sentence imposed. The Court sentenced Mr. Campbell to the guideline minimum sentence of 12 months for the supervised release violation in No. 1:07-cr-095-TWP-TAB, consecutive to Count 22. See No. 1:13-cr-185-TWP-DML-18; dkt. 637; No. 1:07-cr-095-TWP-TAB; dkt. 67. Mr. Campbell's imprisonment was to be followed by three years of supervised release. Id. He was also assessed the mandatory assessment of $100 and restitution in the amount of $15, 310.81. Id. Judgment of conviction was entered in No. 1:13-cr-185-TWP-DML-18 on July 27, 2015. Id.

         Notwithstanding his appeal waiver, at Mr. Campbell's request, the Clerk filed a notice of appeal on his behalf on January 30, 2015. On February 19, 2016, in No. 15-1188, the Seventh Circuit Court of Appeals enforced the appellate waiver in the plea agreement and dismissed the appeal “[b]ecause Campbell knowingly and voluntarily waived his right to appeal….” United States v. Campbell, 813 F.3d 1016, 1019 (7th Cir. 2016).

         Mr. Campbell filed this motion to vacate under 28 U.S.C. § 2255 on March 4, 2016. The United States has responded. Mr. Campbell did not reply.

         Discussion

         A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge her conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). Mr. Campbell's claims are that: 1) he never saw his presentence report before sentencing; 2) he was never granted an evidentiary hearing to have co-defendant David Day testify about “this matter;” 3) I was “tricked” and did not “have the elements of a crime;” and 4) he was coerced by counsel into signing the plea agreement because the judge did not like him and if he did not plead she would give him a longer sentence. Motion to Vacate, dkt. 1. The United States argues that Mr. Campbell's § 2255 motion is barred by the waiver of post-conviction relief rights found in the written plea agreement.

         As noted, the plea agreement provided that in exchange for the concessions made by the United States, Mr. Campbell “waives the right to contest his conviction and sentence and the manner in which it was determined in any collateral attack, including an action brought under Title 28, United States Code, Section 2255.” No. 1:13-cr-0185-TWP-DML-18; dkt. 540, ¶ 7. The Seventh Circuit has already decided that “[b]ecause Campbell ...


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