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Spurlock v. United States

United States District Court, N.D. Indiana, Hammond Division

June 1, 2018

PERCY SPURLOCK
v.
UNITED STATES OF AMERICA

          OPINION AND ORDER

          JAMES T. MOODY JUDGE

         Percy Spurlock has filed a motion (DE # 47, DE # 51)[1] challenging his sentence pursuant to 28 U.S.C. § 2255. For the reasons identified below, Spurlock's motion will be denied.

         I. BACKGROUND

         On December 11, 2013, this court held a change a plea hearing regarding Spurlock's plea of guilty to the charge of possession with intent to distribute crack cocaine. (DE # 25.) Spurlock's plea was made pursuant to his plea agreement (the “Agreement”) with the government. (DE # 24.) On December 17, 2014, this court sentenced Spurlock to a term of 151 months of imprisonment, a term of supervised release, and payment of a special assessment. (DE # 43.)

         Spurlock now seeks to challenge the length of the sentence this court imposed. (DE # 47.) Spurlock identifies three grounds in support of his motion. In Ground One, Spurlock argues that his attorney abandoned him after he was sentenced and failed to file a direct appeal. (DE # 47 at 4.) He claims that he attempted to contact his attorney after the sentencing, but his attorney never responded. (Id.) In Ground Two, Spurlock claims that he did not knowingly and voluntarily enter into his plea agreement. (Id. at 5.) According to Spurlock, his attorney told him that if he pleaded guilty, he would only receive a 36-month term of imprisonment. He argues that he never would have entered into the plea agreement if he knew that he could be sentenced to a 151-month term of imprisonment. (DE # 51 at 5.) In Ground Three, Spurlock argues that his sentence was improperly enhanced pursuant to Sentencing Guideline 4B1.1(b)(3). (Id. at 7.)

         II. LEGAL STANDARD

         A § 2255 motion allows a person in federal custody to attack his or her sentence on constitutional grounds, because it is otherwise illegal, or because the court that imposed it was without jurisdiction. Rule 4 of the Rules Governing § 2255 Proceedings requires the court to promptly examine the motion. “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.” Id.

         III. DISCUSSION

         In his plea agreement, Spurlock explicitly agreed to waive his right to challenge any aspect of his conviction or sentence, including a challenge pursuant to 28 U.S.C. § 2255.[2] Appeal waivers, such as the waiver in Spurlock's plea agreement, are enforceable unless a defendant makes a claim of ineffective assistance of counsel regarding the negotiation of the plea agreement, or some other claim which invalidates the plea agreement (e.g., it was the product of coercion). See Hurlow v. United States, 726 F.3d 958, 964-66 (7th Cir. 2013). Spurlock confronts that issue here by claiming that his decision to plead guilty completely depended on his attorney's assurance that his sentence would be no longer than 36 months, and that he would never have entered the plea agreement if he knew he would ultimately receive a 151-month sentence. (DE # 48 at 1.) While Spurlock does not challenge the negotiation of the waiver itself, he does sufficiently claim that he did not enter the plea agreement knowingly or voluntarily. See Id. at 965 (“[A]n attorney's ineffectiveness with regard to the plea agreement as a whole, and not just the specific waiver provision at issue, renders the waiver unenforceable.”). Thus, before proceeding further, this court must determine whether Spurlock entered into the Agreement knowingly and voluntarily and with the effective assistance of counsel.

         A. Spurlock's Plea Agreement was Knowing and Voluntary

         “The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (internal citation omitted). 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. Moody, 770 F.3d 577, 581 (7th Cir. 2014) (quoting United States v. Messino, 55 F.3d 1241, 1248 (7th Cir. 1995)). “Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.” Lee v. United States, 137 S.Ct. 1958, 1967 (2017). “To determine if a defendant knew and understood the plea agreement, we must examine the language of the plea agreement itself and also look to the plea colloquy between the defendant and the judge.” United States v. Chapa, 602 F.3d 865, 868 (7th Cir. 2010).

         Spurlock's plea agreement supports a finding that he entered the Agreement knowingly and voluntarily. (See DE # 24.) The language of the plea agreement is plain and clear. In the Agreement, Spurlock confirmed that he has the ability to read, write, and speak the English language, and it is clear from his pro se se filings and his comportment at his change of plea hearing that he is intelligent and able to speak and write well in the English language. In the Agreement, Spurlock confirmed that he: read and discussed the Agreement with his counsel; he understood his rights and the consequences of the plea agreement; and understood that under the Sentencing Guidelines the court would determine the applicable Guideline range. The Agreement explicitly stated that the maximum possible term of imprisonment for the offense to which he pleaded guilty was 20 years. In the Agreement, Spurlock also confirmed that he understood that the court was not bound to follow any agreements with, or recommendations by, the government regarding the length of his sentence. Finally, in the Agreement Spurlock confirmed that he entered into the plea agreement voluntarily, and that no promises had been made to him other than those contained in the Agreement.

         This court's plea colloquy with Spurlock during his change of plea hearing also demonstrates that Spurlock entered his plea knowingly and voluntarily.[3] During the hearing Spurlock confirmed, under oath, that: he fully discussed the charges with his counsel; he was fully satisfied with the representation and advice provided by his counsel; he had read and discussed the plea agreement with his counsel; he understood the terms of the plea agreement; no one had made any promises or assurances to him (other than those contained in the Agreement) that induced him to sign the plea agreement; he understood the court was not bound by the recommendations in the Agreement and could impose a sentence more severe than what he anticipated; he understood that the maximum term of imprisonment could be 20 years; he discussed with his counsel how the Guidelines might apply to his case; he understood that the court would not be able to determine the Guideline range until after the presentence report had been completed; he understood that the court could impose a sentence greater than the Guideline range; he understood that by signing the Agreement he waived any right to appeal or contest his conviction and sentence; and finally, he confirmed that he understood that the Guideline range and sentence ultimately imposed could differ from any estimate his attorney may have given him. At the end of the hearing, this court asked Spurlock whether he had any questions and whether he understood everything fully and completely. Spurlock answered in the affirmative.

         The Seventh Circuit has often rejected a defendant's post hoc assertions that his plea was not knowing and voluntary due to his counsel's erroneous sentence prediction. In such cases, the Seventh Circuit has found that any misunderstanding was cured when the district court advised the defendant of the possible consequences of his plea. See e.g. United States v. Scholtes, 447 Fed.Appx. 730 (7th Cir. 2011); Chapa, 602 F.3d at 868-69; United States v. Bowlin, 534 F.3d 654, 660 ...


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