United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
WALTON PRATT, JUDGE
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.
The § 2255 Motion
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.
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.
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.
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.
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.
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).
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.
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.
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