United States v. Zarate

1

UNITED STATES OF AMERICA, Plaintiff-Respondent, v. VALERIANO J. ZARATE, Defendant-Petitioner.

No. 2:14-cr-20065-SLD

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

March 27, 2023

ORDER

SARA DARROW, CHIEF UNITED STATES DISTRICT JUDGE.

Before the Court are Defendant-Petitioner Valeriano J. Zarate's pro se motion to compel, ECF No. 35, 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. 36, and counseled Amended Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (“Counseled 2255 Motion”), ECF No. 38. For the reasons that follow, the pro se motions are MOOT and the Counseled 2255 Motion is DENIED.

BACKGROUND

On October 7, 2014, Zarate was indicted on one count of conspiracy to possess more than five kilograms of cocaine with intent to distribute in violation of 21 U.S.C §§ 841(a)(1), (b)(1)(A)(ii), and 846. Indictment 1-3, ECF No. 1. Zarate retained attorney Baku Patel to represent him. See Not. Appearance, ECF No. 9.

On April 17, 2015, Zarate pleaded guilty to the charge against him pursuant to a written plea agreement. Apr. 17, 2015 Min. Entry; Plea Agreement, ECF No. 14. The parties agreed pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) that “the appropriate disposition of the case [wa]s for [Zarate] to be sentenced within the range of 188 to 235 months of imprisonment, followed by a five-year term of supervised release.” Plea Agreement ¶ 19. This agreement was based, in part, on the parties' understanding that Zarate had no prior felony drug convictions as defined by 21 U.S.C. § 802, see id. ¶ 17(d), which would increase Zarate's mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A). The parties agreed that if the Government discovered prior to sentencing that Zarate had a prior felony drug conviction, “either party ha[d] the option to declare the plea agreement null and void.” Id.

Prior to sentencing, the Government discovered that Zarate in fact had a prior felony drug conviction-a conviction for possession of more than 100 pounds of marijuana with intent to deliver in Arkansas. Sentencing Agreement ¶ 5, ECF No. 23. This meant that Zarate faced a mandatory minimum of twenty years of imprisonment and ten years of supervised release. Id. (citing 21 U.S.C. § 841(b)(1)(A)).^[1] However, rather than declare the original plea agreement null and void, the parties superseded part of the plea agreement with a sentencing agreement. See id. ¶ 6. In the sentencing agreement, the parties agreed that pursuant to Rule 11(c)(1)(C), “the appropriate disposition of the case [wa]s for [Zarate] to be sentenced to 20 years of imprisonment, followed by a ten-year term of supervised release.” Id. ¶ 7.

Pursuant to the plea and sentencing agreements, Zarate waived his right to appeal his sentence (with an exception for a claim of involuntariness or ineffective assistance of counsel) and his right to bring a motion pursuant to 28 U.S.C. § 2255 raising any claim other than a claim of ineffective assistance of counsel. Plea Agreement ¶¶ 23-24; Sentencing Agreement ¶ 10. Judge Colin Bruce, then presiding over the case, sentenced Zarate to the agreed upon sentence of 240 months (twenty years) of imprisonment and ten years of supervised release on September 28, 2015. Judgment 1-3, ECF No. 25. Zarate did not appeal.

In March 2020, Zarate filed the motion to compel, requesting all ex parte communications between Judge Bruce and the United States Attorney's Office for the Central District of Illinois (“USAO”), Mot. Compel 1, and the pro se motion to vacate his sentence under § 2255, arguing that his due process rights were violated because Judge Bruce was biased against him, see Pro Se 2255 Mot. 4-5;^[2] Mem. Supp. Pro Se 2255 Mot. 2-7, ECF No 36-1. These motions were prompted by the USAO's disclosure of ex parte communications between Judge Bruce and employees of the USAO. See United States v. Atwood, 941 F.3d 883, 884-85 (7th Cir. 2019) (providing an explanation of the discovery and disclosure of the communications). The case was reassigned to this Court, see Mar. 20, 2020 Text Order, and the Court appointed the Federal Public Defender (“FPD”) to represent Zarate, see Mar. 27, 2020 Text Order.

The FPD filed the Counseled 2255 Motion on May 18, 2020, see Counseled 2255 Mot. 36, mooting the previously filed pro se motions. The Counseled 2255 Motion asserts two claims: 1) that Judge Bruce was actually biased in favor of the Government and thus his presiding over Zarate's case violated Zarate's due process rights, id. at 29-33; and 2) that Judge Bruce violated 28 U.S.C. § 455(a)^[3] by failing to recuse himself, id. at 33-35.

The Government filed a response arguing that: 1) Zarate waived his right to bring a § 2255 motion in his plea and sentencing agreements; 2) his claims are untimely; 3) his § 455(a) claim is not cognizable on a motion under § 2255; and 4) he “can show no actual bias or appearance of bias, especially where the sentencing judge merely imposed the exact sentence that Zarate asked [him] to impose.” Resp. 1, ECF No. 46. Zarate filed a reply responding to each argument. See generally Reply, ECF No. 49. Subsequently, he filed a notice of supplemental authority. See Not. Suppl. Authority, ECF No. 50 (pointing the Court to a Seventh Circuit case regarding due process bias claims).

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

A. Collateral Review Waiver

First, the Government argues that Zarate's claims are barred by the collateral review waiver in his plea and sentencing agreements. Resp. 8-10. “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).

Zarate does not argue the waiver was unknowing or involuntary or that his claims do not fall within the waiver's scope. See Reply 1-2. Instead, he contends that the waiver is unenforceable because 1) his “bias claim . . . meets the due process exception to . . . collateral attack waivers” and “the failure to recuse under § 455(a) . . . calls into question fundamental fairness to [him] and the legitimacy of the judiciary” and thus should also be excepted from the waiver, id., and 2) “the government is . . . prohibited from enforcing the collateral attack waiver under the equitable doctrine of unclean hands,” id. at 2.

The Court finds neither of Zarate's arguments persuasive. First, though “[d]ue process guarantees an absence of actual bias on the part of a judge,” Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (quotation marks omitted), not all due process claims are excepted from collateral review waivers. Zarate cites no cases finding an exception for judicial bias claims. And 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 10-0086 MCA, 2013 WL 12164686, at *5-6 (D.N.M. Mar. 7, 2013), adopted by 2015 WL 12859352, at *3-4 (D.N.M. Aug. 17, 2015).

Zarate also cites no support for the proposition that the due process exception to collateral review waivers would encompass a statutory claim for violation of 28 U.S.C. § 455(a) based on an appearance of impropriety. Second, Zarate's unclean hands argument is underdeveloped. He cites no cases applying the unclean hands doctrine to plea agreements and does not develop the facts about who in the USAO knew that USAO employees were engaging in ex parte contact with Judge Bruce, when they knew it, or how the misconduct relates to Zarate's waiver. See United States v. Lanzotti, 205 F.3d 951, 957 (7th Cir. 2000) (“It is not th[e] court's responsibility to research and construct the parties' arguments.”).

Nevertheless, as explained below, the Court would deny Zarate's arguments on the merits even if there were no collateral review waiver.

B. Timeliness

As the...