United States v. Ingram

1

UNITED STATES OF AMERICA, Plaintiff-Respondent, v. NICHOLAS INGRAM, Defendant-Petitioner.

No. 2:16-cr-20074-SLD-EIL

United States District Court, C.D. Illinois, Urbana Division

May 10, 2023

ORDER

SARA DARROW, CHIEF UNITED STATES DISTRICT JUDGE.

Before the Court are Defendant-Petitioner Nicholas Ingram's pro se Motion Under 28 U.S.C. § 2255 to Vacate Set Aside, or Correct Sentence by a Person in Federal Custody (“Pro Se 2255 Motion”), ECF No. 29, counseled Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (“Counseled 2255 Motion”), ECF No. 32, and counseled motion for a status conference, ECF No. 36. For the reasons that follow, the Counseled 2255 Motion is DENIED, and the remaining motions are MOOT.

BACKGROUND

On November 3, 2016, a grand jury indicted Ingram on one count of possession of five grams or more of actual methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Indictment 1, ECF No. 1. Assistant Federal Public Defender Elisabeth Pollock was appointed to represent him. Nov. 15, 2016 Min. Entry. On April 24, 2017 the Government filed an information notifying Ingram and the Court that it intended to rely on Ingram's prior convictions for felony drug offenses to subject him to a ten-year mandatory minimum term of imprisonment. Information Concerning Prior Conviction 1-2, ECF No. 12.

Ingram entered a plea of guilty to the charge against him pursuant to a plea agreement. Apr. 24, 2017 Min. Entry; Plea Agreement, ECF No. 13. Under the plea agreement, Ingram waived his rights to appeal and collaterally attack his conviction and sentence (with an exception for claims of involuntariness and ineffective assistance of counsel). Plea Agreement ¶¶ 26-27. Ingram's plea was accepted by United States District Judge Colin Bruce, who was then presiding over the case, on May 9, 2017. Order Approving Magistrate Judge Recommendation, ECF No. 18.

The United States Probation Office (“USPO”) prepared a presentence investigation report (“PSR”) in advance of sentencing. PSR, ECF No. 20. USPO indicated that Ingram was a career offender, id. ¶ 23, and after accounting for acceptance of responsibility, listed his total offense level as 34, id. ¶¶ 24-26. With a criminal history category of VI, id. ¶ 47, his Sentencing Guidelines range for imprisonment was 262 to 327 months, id. ¶ 80. He was subject to a mandatory eight-year term of supervised release by statute. Id. ¶ 82. Ingram did not object to the PSR.^[1]

On August 28, 2017, Judge Bruce sentenced Ingram to 204 months of imprisonment and eight years of supervised release. Aug. 28, 2017 Min. Entry. Ingram did not appeal. Judge Bruce recused from the case in early 2020 after Ingram filed a motion for a status update. See Jan. 3, 2020 Text Order of Recusal. The matter was reassigned to this Court. See Jan. 3, 2020 Text Order Reassigning Case.

In June 2020, Ingram filed the Pro Se 2255 Motion. See Pro Se 2255 Mot. 1.^[2] He alleged that “counsel failed to preserve [his] rights to raise a claim against Judge Bruce's failure to recuse himself from cases pursuant to . . . 28 U.S.C. § 455(a).” Id. at 4. The § 455(a) claim would be based on ex parte communications between Judge Bruce and the United States Attorney's Office for the Central District of Illinois (“USAO”) that came to light in 2018. See United States v. Atwood, 941 F.3d 883, 884-85 (7th Cir. 2019) (providing a brief explanation of the discovery and disclosure of the communications).

The Court appointed counsel to represent Ingram with respect to the Pro Se 2255 Motion. See June 5, 2020 Text Order. On September 30, 2020, counsel filed the Counseled 2255 Motion, mooting the Pro Se 2255 Motion. See Counseled 2255 Mot. 1.^[3] The Counseled 2255 Motion raises the following claims: that Ingram's “due process rights were violated because Judge Bruce was actually bias[ed] against him”; that “Judge Bruce's conduct created the appearance of bias” requiring recusal under 28 U.S.C. § 455(a); and that the Federal Public Defender's office (“FPD”) provided Ingram with ineffective assistance of counsel in violation of the Sixth Amendment by failing to raise claims based on Judge Bruce's communications in Ingram's appeal and by failing to secure tolling agreements to allow Ingram to raise his claims on a motion under § 2255. Id. at 12, 22-23.

The Government filed its response on February 1, 2021. Resp., ECF No. 35. It argues that Ingram cannot show that Judge Bruce was actually biased against him, that his “nonconstitutional appearance of bias claim is not a proper basis for relief in a § 2255 proceeding,” that his “allegations should be dismissed because he waived his right to collaterally attack his sentence and conviction as part of his plea agreement,” that he procedurally defaulted his § 455(a) claim, that the § 455(a) claim is untimely, and that the ineffective assistance of counsel claims “do not warrant relief.” Id. at 25-26.

No reply was filed, though Ingram later filed a motion for a status conference.

DISCUSSION

I. Legal Standard

A prisoner in federal custody may move the court that imposed his sentence to vacate, set aside, or correct it. 28 U.S.C. § 2255(a). “[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Accordingly, such relief “is available only when the ‘sentence was imposed in violation of the Constitution or laws of the United States,' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255(a)).

II. Analysis

The Court first addresses the Government's waiver argument as that applies to more than one of Ingram's claims and then addresses each of Ingram's claims and any defenses specific to those claims.

A. Waiver

Ingram's plea agreement contains a waiver of the right to collaterally attack his conviction and sentence with limited exceptions. See Plea Agreement ¶¶ 26-27. The Government argues that Ingram's due process and § 455(a) claims “are squarely within the scope of the broad collateral attack waiver” and that Ingram “does not assert any recognized exception to the enforcement of the waiver.” Resp. 45-46.

“It is well-settled that waivers of direct and collateral review in plea agreements are generally enforceable.” Hurlow v. United States, 726 F.3d 958, 964 (7th Cir. 2013).^[4] If a collateral review waiver is voluntary and knowing, it is generally enforceable. Dowell v. United States, 694 F.3d 898, 902 (7th Cir. 2012). “There are only limited instances when [the court] will not enforce a knowing and voluntary waiver of . . . collateral review.” Id. Waivers are unenforceable, for example, if “the district court relied on a constitutionally impermissible factor (such as race)” in determining the sentence or “the sentence exceeded the statutory maximum.” Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011) (quotation marks omitted). Waivers are also unenforceable “against claims that counsel was ineffective in the negotiation of the plea agreement.” Hurlow, 726 F.3d at 964. There are also “at least some due process exceptions to a waiver.” United States v. Adkins, 743 F.3d 176, 192 (7th Cir. 2014). For example, a waiver “will not prevent a defendant from challenging . . . deprivation of some minimum of civilized procedure (such as if the parties stipulated to trial by twelve orangutans).” Id. (quotation marks omitted).

As Ingram failed to mention his waiver in either of his motions and did not file a reply, he has not argued that the waiver was not entered into voluntarily and knowingly. In any case, the record demonstrates that it was. Ingram signed the plea agreement, Plea Agreement 16, and represented that the collateral review waiver was entered into voluntarily and knowingly, see Id. ¶ 28 (acknowledging that he was “waiving [his rights to appeal and collaterally attack his sentence] because [he] personally believe[d] it [wa]s in his best interest to do so in order to obtain the benefit of the concessions made by the United States in this agreement”); id. (stating that he was not “coerced, threatened, intimidated, or in any other way involuntarily persuaded to waive [his] rights to appeal or collaterally attack [his] sentence”); id. ¶ 36 (stating that he had “read th[e] entire Plea Agreement carefully and . . . discussed it with fully with [his] attorney” and that he fully understood and accepted the agreement “without reservation, including the paragraphs labeled ‘Waiver of Right to Appeal' and ‘Waiver of Right to Collateral Attack'”).

And, again, as Ingram has not addressed the waiver, he has not identified any other reason for the Court not to enforce it. The Court finds no exception recognized by the Seventh Circuit applies. There is no allegation that the sentence was based on a constitutionally prohibited factor like race or gender or that the sentence exceeds the statutory maximum. See Adkins, 743 F.3d at 192. And in the absence of any argument from Ingram that there is a due process exception for a claim that a judge was actually biased against a defendant, see Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (“Due process guarantees an absence of actual bias on the part of a judge ....” (quotation marks omitted)), the Court is not inclined to find one exists.

Indeed other courts have enforced waivers against judicial bias claims. See United States v. Carver, 349 Fed.Appx. 290, 292-94 (10th Cir. 2009); Anderson v. United States, No. CV 12-1025 MCA/WPL & CR...