United States District Court, S.D. Indiana, Evansville Division
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
RICHARD L. YOUNG, JUDGE
reasons explained in this Entry, the motion of Michelle
Pippin 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
January 28, 2015, Michelle Pippin (“Pippin”),
along with her co-defendants, was charged in No.
3:15-cr-003-RLY-WGH-05 and No. 3:15-cr-006-RLY-WGH-03 with
conspiracy to possess with intent to distribute 50 grams of
methamphetamine or 500 grams of a mixture or substance
containing a detectable amount of methamphetamine, a Schedule
II Non-Narcotic Controlled Substance, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. Pippin
retained Attorney Dax Womack to represent her in both cases.
August 13, 2015, a Sealed Petition to Enter a Plea of Guilty
and Plea Agreement, and a Sealed Addendum to the Petition and
Plea Agreement was filed in both cases. The Plea Agreement,
entered by the parties pursuant to Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure,
provided, among other things, that Pippin would cooperate and
plead guilty to the two charges of possession with intent to
distribute meth and receive a specific sentence of 180
months' imprisonment for each charge, with the sentences
running concurrently. In exchange, the government agreed to
run the 180-month sentences concurrently, and forego the
filing of an Information pursuant to 21 U.S.C. § 851,
which would have subjected Pippin to a life sentence because
of her criminal history. The Plea Agreement noted that the
potential maximum penalty Pippin faced was life imprisonment,
a $10, 000, 000 fine, and five years' supervised release.
It further provided the elements of the offense and the
factual basis for the guilty pleas. Also under the terms of
the Plea Agreement, Pippin expressly waived her right to
appeal the convictions and sentences imposed on “any
ground, ” regardless of how her sentences were
calculated by the court or under the United States Sentencing
Guidelines, if the court accepted the Rule 11(c)(1)(C)
binding plea. Except for claims that she received ineffective
assistance of counsel in the negotiation of the plea or plea
agreement, Pippin waived her right to collaterally challenge
her convictions or sentences in an action brought under 28
U.S.C. § 2255.
understood that her plea was governed by Rule 11(c)(1)(C) and
that the specific sentence of 180 months' imprisonment
for the charges in each Indictment, to be served
concurrently, as set forth in the Plea Agreement.
§ 2255 motion is the presumptive means by which a
federal prisoner can challenge his conviction or sentence.
See Davis v. United States, 417 U.S. 333, 343
(1974). The parameters of relief pursuant to § 2255 were
reviewed in Young v. United States, 124 F.3d 794,
796 (7th Cir. 1997):
Section 2255 is not a way to advance arguments that could
have been presented earlier--especially not when the
arguments rest entirely on a statute. See Reed v.
Farley, 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277
(1994). Although sec. 2255 para.1 permits a collateral attack
on the ground that “the sentence was imposed in
violation of the Constitution or laws of the United States,
” only a small portion of statutory claims demonstrate
that the sentence or conviction is itself a violation of law.
The error must be so fundamental that a “complete
miscarriage of justice” has occurred. Reed,
512 U.S. at 348, quoting from Hill v. United States,
368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Other
“non-constitutional errors which could have been raised
on appeal but were not, are barred on collateral
review--regardless of cause and prejudice.”
Bontkowski v. United States, 850 F.2d 306, 313 (7th
relief pursuant to § 2255 is limited to an error of law
that is jurisdictional, constitutional, or constitutes a
fundamental defect which inherently results in a complete
miscarriage of justice. Borre v. United States, 940
F.2d 215, 217 (7th Cir. 1991).
challenges the validity of her guilty plea and claims that
she was denied the effective assistance of counsel. She also
argues that her enhanced sentence as a career offender is
unlawful under Johnson v. United States, 135 S.Ct.
2551, 2557 (2015).
order for a plea to be valid, it must be made voluntarily,
knowingly, and intelligently. United States v. Hays,
397 F.3d 564, 567 (7th Cir. 2005) (citing United States
v. Gilliam, 255 F.3d 428, 432-33 (7th Cir. 2001)). A
plea is voluntary when it is not induced by threats or
misrepresentations, and the defendant is made aware of the
direct consequences of the plea. United States v.
Jordan, 870 F.2d 1310, 1317 (7th Cir. 1989) (citing
Brady v. United States, 397 U.S. 742, 755 (1970)).
guilty plea was entered in open Court and only after full
compliance with the requirements of Rule 11 of the
Federal Rules of Criminal Procedure. She
acknowledged having received a copy of the Indictments,
having discussed the charges with her attorney, and being
guilty of the offenses to which she was pleading guilty. Her
statements are binding in this proceeding. Hugi v. United
States,164 F.3d 378, 381 (7th Cir. 1999).
“[V]oluntary responses made by a defendant under oath
before an examining judge [are] binding.” United
States v. Ellison,835 F.2d 687, 693 (7th Cir. 1987).
Pippin acknowledged that she had the right to plead not
guilty to the charges, that she was aware that the maximum
possible statutory sentences was life imprisonment, that if
she went to trial the government would have the burden of
proving the elements of the offenses beyond a reasonable
doubt, that she had the right to trial by jury and to compel
the attendance of ...