United States v. Jones, Case No. 3:14-CR-002 JD

UNITED STATES OF AMERICA v. LARRY JONES

Case No. 3:14-CR-002 JD

Case No. 3:15-CV-058 JD

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

February 16, 2016

OPINION AND ORDER

Defendant Larry Jones pled guilty to knowingly possessing a stolen firearm, and received a sentence of 100 months of imprisonment. After the judgment became final, he filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, arguing that his attorney provided ineffective assistance of counsel by failing to file a motion to suppress, failing to properly represent him at sentencing, and failing to file a notice of appeal. That motion is now fully briefed. For the reasons that follow, the Court finds that Mr. Jones is not entitled to relief under § 2255 under these circumstances, so Mr. Jones' motion must be denied.

I. FACTUAL BACKGROUND

Mr. Jones was initially charged in a three-count indictment with possession of heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm having previously been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). [Case No. 3:13-CR-92, DE 1]. Prior to the indictment, law enforcement officers had conducted multiple controlled buys of heroin from Mr. Jones at his residence. They then executed a search warrant at his property, during which they discovered various quantities of heroin and other paraphernalia, both in his residence and in his garage. They also discovered two firearms, one of which was found in a trashcan in the garage, next to a bag that contained ten or fifteen grams of heroin, baggies, and a scale. That firearm had been reported stolen.

Mr. Jones ultimately entered a plea agreement by which he agreed to plead guilty to an information charging him with knowingly possessing a stolen firearm, in violation of 18 U.S.C. § 922(j). [Case No. 3:14-CR-2, DE 1, 2]. Notably, given Mr. Jones' previous convictions, that offense cannot trigger the career offender guideline, nor can it expose a defendant to mandatory minimum penalties under the Armed Career Criminal Act, which only applies to convictions under § 922(g). As part of his plea agreement, Mr. Jones also waived his right to appeal or contest his conviction and sentence to any court on any ground, including in a proceeding under § 2255. In return, the government agreed to dismiss each of the three counts in the original indictment. As a result, instead of facing charges that carried mandatory minimum terms and sentences of up to life imprisonment, Mr. Jones pled guilty to a single charge that exposed him to up to ten years of imprisonment. The magistrate judge conducted a change of plea hearing with Mr. Jones on January 24, 2014, after which the Court adopted the report and recommendation and accepted Mr. Jones' guilty plea. [DE 6, 9, 39].

At sentencing, Mr. Jones had a base offense level of 24 under the Sentencing Guidelines, as he had two prior convictions for controlled substance offenses. U.S.S.G. § 2K2.1(a)(2). He then received enhancements for possessing a stolen firearm, § 2K2.1(b)(4), and for possessing a firearm in connection with another felony offense, § 2K2.1(b)(6)(B). After receiving a reduction for acceptance of responsibility, § 3E1.1, Mr. Jones' total offense level was 27. Mr. Jones' criminal history score of eight placed him in criminal history category IV. This produced an advisory sentencing range of 100 to 125 months, which was then limited to a range of 100 to 120 months due to the statutory maximum. Mr. Jones' attorney objected to the two enhancements, both prior to and during the sentencing hearing. After accepting evidence and argument from the parties on those enhancements, the Court overruled the objections and applied the enhancements.Finally, after considering the factors under 18 U.S.C. § 3553(a), the Court sentenced Mr. Jones to a term of 100 months of imprisonment, at the bottom end of the advisory sentencing range. The Court entered the judgment on May 19, 2014. [DE 24].

Mr. Jones did not file a notice of appeal within 14 days, so his conviction became final. On January 15, 2015, Mr. Jones filed a document entitled "Appeal under 28 U.S.C. 2255." [DE 26]. Shortly thereafter, Mr. Jones filed a formal notice of appeal from his conviction, [DE 28], so the Court held the motion under § 2255 in abeyance pending the resolution of that appeal. The Seventh Circuit eventually dismissed Mr. Jones' appeal as untimely [DE 35], at which point Mr. Jones confirmed that he wished for his previous filing to be construed as a motion under § 2255. That motion has now been fully briefed, and is ripe for adjudication.

II. STANDARD OF REVIEW

Section 2255(a) of Title 28 provides that a federal prisoner "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255 relief is appropriate only for "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). Further, a "Section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal." Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995); Bousley v. United States, 523 U.S. 614, 621 (1998) (stating that habeas review "will not be allowed to do service for an appeal"). Relief under § 2255 is extraordinary because it seeks to reopen the criminal process to a person who has already had an opportunity of full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)).

III. DISCUSSION

In support of his claim for relief under § 2255, Mr. Jones asserts that his attorney was ineffective in multiple respects, including by failing to file a motion to suppress evidence, failing to object at sentencing to certain enhancements under the Sentencing Guidelines, and failing to file a notice of appeal upon his request. In response, the government argues that Mr. Jones waived his right to file a motion under § 2255, and that this waiver bars his claims. It further argues that his claims of ineffective assistance of counsel would fail on their merits. The Court first addresses the enforceability of the collateral review waiver. Because an attorney's failure to file a motion to suppress evidence can constitute ineffective assistance in connection with a plea, which can void a waiver, the Court also considers that claim in the context of the waiver. Though the Court finds that the waiver is enforceable and precludes Mr. Jones' other claims, it also considers those claims on their merits and concludes that they would fail even absent the collateral review waiver.

A. The Waiver in Mr. Jones' Plea Agreement is Enforceable

The government argues that Mr. Jones' motion should be dismissed because he waived his right to file such a motion in his plea agreement. Specifically, paragraph 9(e) of Mr. Jones' plea agreement states:

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 my sentence or the manner in which my conviction or my sentence was determined or imposed, to any Court on any ground, including any claim of ineffective assistance of counsel unless the claimed ineffective assistance of counsel relates directly to this waiver or its negotiation, including any appeal under Title 18, United States Code, Section 3742, or any post-conviction proceeding, includingbut not limited to, a proceeding under Title 28, United States Code, Section 2255[.]

[DE 2, p. 4 (bold in original)].

"A defendant may validly waive both his right to a direct appeal and his right to collateral review under § 2255 as a part of his plea agreement." Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011). The Seventh Circuit has held that "waivers are enforceable as a general rule; the right to mount a collateral attack pursuant to § 2255 survives only with respect to those discrete claims which relate directly to the negotiation of the waiver." Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999). Thus, a defendant who has waived his right to file a motion under § 2255 must typically establish either that the waiver (or the plea agreement of which it is a part) was not entered knowingly and voluntarily, or that the defendant received ineffective assistance of counsel in connection with the plea agreement. Id.; Keller, 657 F.3d at 681 ("We have generally upheld and enforced these waivers, with limited exceptions for cases in which the plea agreement was involuntary . . . or the defendant claims ineffective assistance of counsel in connection with the negotiation of the plea agreement."). Mr. Jones presents arguments on both fronts, and the Court considers them in turn.

First, in arguing that this waiver should not be enforced, Mr. Jones argues that the mere fact that he has now filed a motion under § 2255 shows that he must not have knowingly waived his right to do so. He thus requests a hearing on whether he knowingly entered this waiver. Such a conclusory and circular allegation is insufficient to warrant a hearing, though. Moreover, the Court need not conduct a new...