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Shultz v. United States

United States District Court, N.D. Indiana, South Bend Division

November 10, 2017

JAMIE SHULTZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          OPINION AND ORDER

          Robert L. Miller, Jr. Judge

         Jamie Shultz pleaded guilty to illegal possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), and was sentenced to 60 months' imprisonment. Mr. Shultz's timely petition under 28 U.S.C. § 2255 [Doc. No. 29] asking that his sentence be vacated, set aside, or corrected pends before the court. His petition claims that his counsel provided constitutionally ineffective assistance by: (1) failing to disclose that his guilty plea would subject him to a mandatory minimum sentence; (2) inducing him to plead guilty by knowingly misrepresenting the sentence he faced; (3) not arguing mitigating factors at sentencing; (4) not objecting to the presentence report that allegedly included two erroneous felonies convictions; and (5) affirmatively misadvising him as to the consequences of his guilty plea. Mr. Shultz's motion for appointed attorney representation [Doc. No. 30] also pends. For the reasons that follow, the court denies Mr. Shultz's motions.

         I. Standard of Review

         A person convicted of a federal crime can challenge his sentence on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, that the court had no jurisdiction to impose such sentence, that the sentence exceeded the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Issues not argued and decided on direct appeal generally can't be raised in a § 2255 petition unless the petitioner can show good cause and actual prejudice for the procedural default. Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002). A claim of ineffective assistance of counsel not raised on direct appeal can still be raised in a § 2255 petition. Massaro v. United States, 538 U.S. 500, 504 (2003).

         An evidentiary hearing isn't required if “the motion and files and records of the case conclusively show that the petitioner is entitled to no relief.” 28 U.S.C. § 2255 (2012). After reviewing Mr. Shultz's petition and the record of this case, the court concludes that the factual and legal issues raised can be resolved on the record, so no hearing is necessary.

         II. Discussion

         To succeed on his ineffective assistance of counsel claim, Mr. Shultz must show that (1) his counsel's performance was deficient, and (2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015). Mr. Shultz must show both “that counsel made errors so serious that ‘counsel' was not functioning as the counsel guaranteed the defendant by the Sixth Amendment” and “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 687, 694; Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015). “The Sixth Amendment right to effective assistance of counsel extends to the plea bargaining process.” Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015).

         “[T]here is a strong presumption that [a petitioner's] attorney performed effectively.” Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003). “A court's scrutiny of an attorney's performance is ‘highly deferential' to eliminate as much as possible the distorting effects of hindsight, and we ‘must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” Vinyard v. United States, 804 F.3d at 1225 (quoting Strickland, 466 U.S. at 687). The reasonableness of counsel's performance must be evaluated “from counsel's perspective at the time of the alleged error and in light of all the circumstances.” Kimmelman v. Morrison, 477 U.S. at 381.

         A. Ineffective Assistance of Counsel Claims Related to Sentencing

         Mr. Shultz raises two claims of ineffective assistance of counsel related to his sentencing: that his attorney was constitutionally deficient because he didn't argue mitigating factors at sentencing and didn't object to the presentence report that allegedly included two erroneous felonies convictions. The court can't reach the merits of those claims because Mr. Shultz's plea agreement contains an appeal waiver that prevents him from raising them.

         Mr. Shultz's plea agreement, signed by Mr. Shultz, his attorney James Korpal, and Assistant United States Attorney Donald Schmid, contains the following language:

I expressly waive my right to appeal or to contest my conviction and all components of my sentence or the manner in which my conviction or my sentence was determined or imposed, to any Court on any ground other than a claim of ineffective assistance of counsel, 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[.]

         [Doc No. 11, ¶ 9(d) (emphasis added)].

         A court “will enforce an appeal waiver in a plea agreement if the terms of the waiver are clear and unambiguous and the defendant knowingly and voluntarily entered into the agreement.” United States v. Worden, 646 F.3d 499, 502 (7th Cir. 2011). “To bar collateral review, the plea agreement must clearly state that the defendant waives his right to collaterally attack his conviction or sentence in addition to waiving his right to a direct appeal.” Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011) (italics omitted). “[A] defendant's freedom to waive his appellate rights includes the ability to waive his right to make ...


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