United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge
Seay pleaded guilty to being a felon in possession of a
firearm, a violation of 18 U.S.C. § 922(g)(1). This
court sentenced Mr. Seay to a term of 30 months'
imprisonment and a two-year period of supervised release. As
part of the plea agreement, Mr. Seay waived his right to
appeal his conviction and his right to file any
post-conviction proceedings under 28 U.S.C. § 2255 with
the exception of an ineffective assistance of counsel claim.
Mr. Seay is now requesting that the court vacate his
conviction and sentence under 28 U.S.C. § 2255. [Doc.
No. 32] - attacking his conviction by alleging violations of
certain United States statutes and constitutionally deficient
representation. For the following reasons, the court denies
Mr. Seay's motion.
January 2015 Mr. Seay, a convicted felon who was serving a
term of supervised release, was arrested and charged with
possessing a firearm. The State of Indiana charged Mr. Seay
with resisting arrest and for violating certain provisions of
his supervised release. He was sentenced in state court to a
cumulative three years in imprisonment and remained in state
Seay was indicted in federal court for possessing a firearm
after a felony conviction. 18 U.S.C. § 922(g)(1). Mr.
Seay was taken into federal custody, but not until after he
finished serving his state time. No. federal detainer had
been placed on Mr. Seay before this. Mr. Seay pleaded guilty
and informed the court that-as part of the signed plea
agreement-he had agreed to waive his right, apart from an
ineffective assistance of counsel claim, to collaterally
attack his conviction under 28 U.S.C. § 2255 and his
right to an appeal. Mr. Seay said he understood the plea
agreement and that he knowingly and voluntarily signed it in
exchange for the government's recommendation of the
maximum acceptance-of-responsibility credit available. The
court sentenced Mr. Seay to a term of imprisonment of 30
months and a two-year period of supervised release.
weeks later, Mr. Seay filed this petition under 28 U.S.C.
Seay attacks his sentence and conviction by alleging certain
statutory deficiencies and that his counsel provided
ineffective assistance by allowing him to take a plea deal
when meritorious claims were available to him. The rules
governing petitions filed under 28 U.S.C. § 2255 provide
that once a motion is filed:
The motion, together with all the files, records,
transcripts, and correspondence relating to the judgment
under attack, shall be examined promptly by the judge to whom
it is assigned. If it plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in
the case that the movant is not entitled to relief in the
district court, the judge shall make an order for its summary
dismissal and cause the movant to be notified.
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts. After reviewing the record in
this case, the court finds that Mr. Seay's petition can
be resolved without a hearing. See Bruce v. United
States, 256 F.3d 592, 597 (7th Cir. 2001); Daniels
v. United States, 54 F.3d 290, 293 (7th Cir. 1995).
Seay can't present his statutory claims unless he
establishes ineffective assistance of counsel. His written
plea agreement expressly waived his right to file any
post-conviction proceedings on any grounds other than
ineffective assistance of counsel.
(e) I understand that the law gives a convicted person the
right to appeal the conviction and the sentence imposed. I
also understand that no one can predict the precise sentence
that will be imposed, and that the Court has jurisdiction and
authority to impose any sentence within the statutory maximum
set for my offense(s) as set forth in this Plea Agreement.
With this understanding and in consideration of the
government's entry into this plea agreement, 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. 19-Filed Plea Agreement) (emphasis in original)
waiver of § 2255 rights is enforceable. See United
States v. Alcala, 678 F.3d 574, 577 (7th Cir.2012);
Keller v. United States, 657 F.3d 675, 681 (7th
Cir.2011); Jones v. United States, 167 F.3d 1142,
1145 (7th Cir. 1999). The court of appeals has held “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) (emphasis in
original). This waiver is enforceable if made knowingly and
voluntarily, id., and if not the result of
ineffective assistance of counsel. Dowell v. United
States, 694 F.3d 898, 902 (7th Cir. 2012).
Seay also argues that his counsel was unconstitutionally
ineffective because his attorney 1) didn't raise any
issues concerning his delay in state custody or advise him of
his right to a trial, and 2) didn't challenge the facts
and circumstances surrounding his illegal firearm possession.
traditionally reject broad, unsupported assertions of
ineffective assistance, see, e.g., Jones v. United
States, 167 F.3d at 1145-1146, and “garden variety
attacks ... raise[d] in the guise of a claim of ineffective
assistance of counsel.” United States v.
Joiner, 183 F.3d 635, 645 (7th Cir.1999). To
successfully navigate around the waiver of appellate and
post-conviction rights, Mr. Seay must argue that he entered
into the plea agreement based on advice of counsel that fell
below constitutional standards; that the decision was the
product of ineffective assistance. Hurlow v. United
States, 726 F.3d 958, 966-967 (7th Cir. 2013);
United States v. ...