United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge
Duran pleaded guilty to possessing a firearm after a felony
conviction, a violation of 18 U.S.C. § 922(g)(1). The
court sentenced Mr. Duran to a term of 34 months'
imprisonment and a two-year period of supervised release. As
part of the plea agreement, Mr. Duran waived his right to
appeal his conviction and his right to file any
post-conviction proceedings under 28 U.S.C. § 2255 other
than an ineffective assistance of counsel claim. Mr. Duran is
now requesting that the court vacate his conviction and
sentence under 28 U.S.C. § 2255. [Doc. No. 60]. For the
following reasons, the court denies Mr. Duran's motion.
August 2015 Mr. Duran, already a convicted felon, was
arrested and charged with possessing a firearm. 18 U.S.C.
§ 922(g)(1). Mr. Duran 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. Duran said
he understood the plea agreement and that he knowingly and
voluntarily signed it in exchange for the government's
recommendation of the third level
acceptance-of-responsibility credit and a recommendation of a
sentence of imprisonment within the guideline range for
imprisonment. The court sentenced Mr. Duran to a term of
imprisonment of 34 months and a two-year period of supervised
Duran served his term of imprisonment, then began his term of
supervised release. When Mr. Duran failed to comply with a
condition of supervised release, the probation officer
requested that the court revoke Mr. Duran's supervised
release. Mr. Duran admitted guilt to violation of conditions
of the term of supervision, and the court revoked his
supervised release. After the Supreme Court decided
Rehaif v. United States, 139 S.Ct. 2191 (2019) and
United States v. Davis, 139 S.Ct. 2319 (2019), Mr.
Duran asked that the court vacate or modify his sentence
based on those cases. Mr. Duran separately asked the court to
vacate his revocation of probation under United States v.
Haymond, 139 S.Ct. 2369 (2019). The court denied Mr.
Duran's requests, and two days later he filed this motion
to vacate under 28 U.S.C. § 2255.
Duran appears to attack his sentence and conviction by
alleging that there were insufficient facts to sustain his
conviction. 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. Mr. Duran'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).
Duran can't present his insufficiency of the evidence
claim 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.
(d) 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. 11-Filed Plea Agreement)
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).
Duran hasn't argued that his counsel was
unconstitutionally ineffective. Nor has he alleged any facts
that would allow the court to draw the inference that his
counsel was ineffective. Instead, he argues that (1)
Rehaif requires that a felon in possession
“knowingly” possess a firearm (apparently arguing
that the evidence didn't support a finding of knowing
possession); (2) the interstate commerce requirement
wasn't met, and (3) he didn't have the mens
rea required for possession. In his plea agreement, Mr.
Duran knowingly and voluntarily waived the right to challenge
his conviction on the grounds presented.
on the foregoing, the court DENIES the motion to ...