Opinion
Civil No. 17-cv-1082-DRH-CJP
07-25-2018
JERRY HOWARD COOLEY, Petitioner, v. T. G. WERLICH, Respondent.
REPORT AND RECOMMENDATION PROUD, Magistrate Judge :
Petitioner Jerry Howard Cooley filed a petition for writ of habeas corpus under 28 U.S.C. §2241 (Doc. 1) challenging the enhancement of his sentence as a career offender under U.S.S.G. § 4B1.1. He purports to rely on Mathis v. United States, 136 S. Ct. 2243 (2016). Now before the Court is Respondent's Motion to Dismiss, Doc. 13. Petitioner responded to the motion at Doc. 19. His response is styled as a "Motion to Deny Respondent's Motion to Dismiss."
For the reasons discussed below, the undersigned RECOMMENDS that the District Judge GRANT the motion.
Relevant Facts and Procedural History
Cooley was indicted in the Eastern District of Missouri in October 2010. United States v. Cooley, Case No. 10-cr-00205-RWS, E.D. Mo. He was charged with one count of Bank Robbery by Means of a Deadly and Dangerous Weapon in violation of 18 U.S.C. § 2113(a) and (d), and one count of Bank Robbery in violation of 18 U.S.C. § 2113(a). Pursuant to a written plea agreement, Cooley pleaded guilty to Count Two. Count One was dismissed by the Government at sentencing. Count Two carried a maximum sentence of 20 years. Cooley was sentenced to 180 months imprisonment. See, Judgment, Case No. 10-cr-00205-RWS, Doc. 37.
The plea agreement contained a waiver of the right to appeal or file a collateral attack. The plea agreement is a sealed document in the Eastern District of Missouri electronic filing system. Respondent has reproduced the relevant section in his Motion to Dismiss:
(2) Habeas Corpus: The defendant acknowledges being guilty of the crime to which a plea is being entered, and further states that neither defense counsel nor the government have made representations which are not included in this document as to the sentence to be imposed. The defendant further agrees to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to Title 28, United States Code, Section 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel.Doc. 13, p. 2.
Despite the waiver, petitioner filed a motion under 28 U.S.C. § 2255 in the Eastern District of Missouri in 2014, citing Alleyne V. United States, 133 S. Ct. 2151 (2013). Cooley v. United States, Case No. 14-cv-1079-RWS. The motion was denied because "In his plea agreement, he expressly waived his right to contest the judgment in a collateral proceeding, including a § 2255 motion." Case No. 14-cv-1079-RWS, Doc. 2.
In 2016, petitioner filed another motion under 28 U.S.C. § 2255 in the Eastern District of Missouri challenging his classification as a career offender under Johnson v. United States, 135 S. Ct. 2551 (2015). Cooley v. United States, Case No. 16-cv-857-RWS. The motion was denied because petitioner did not obtain permission from the court of appeals to bring a second or successive § 2255 motion.
Grounds for Habeas Relief
Ostensibly relying on Mathis v. United States, 136 S. Ct. 2243 (2016), petitioner argues that his prior Missouri conviction for second degree robbery no longer qualifies as a crime of violence for purposes of the career offender enhancement under U.S.S.G. § 4B1.1. He cites United States v. Bell, 840 F.3d 963 (8th Cir. 2016), for that proposition. However, Bell has been overruled. United States v. Swopes, 886 F.3d 668 (8th Cir. 2018), as corrected (Mar. 29, 2018).
Grounds for Dismissal
Respondent argues that the petition should be dismissed for two reasons. First, petitioner cannot bring his claim in a § 2241 petition because a sentence calculated under the advisory Sentencing Guidelines does not constitute a miscarriage of justice. Secondly, petitioner waived his right to bring a collateral attack.
Analysis
Both of respondent's arguments are meritorious.
Petitioner cannot bring a Mathis claim in a § 2241 petition. There are some errors that can be raised on direct appeal but not in a collateral attack such as a § 2255 motion or a § 2241 petition. A claim that a defendant was erroneously treated as a career offender under the advisory Sentencing Guidelines is one such claim. Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013), supplemented on denial of rehearing, 724 F.3d 915 (7th Cir. 2013). See also, United States v. Coleman, 763 F.3d 706, 708-09 (7th Cir. 2014)("[W]e held in Hawkins that the error in calculating the Guidelines range did not constitute a miscarriage of justice for § 2255 purposes given the advisory nature of the Guidelines and the district court's determination that the sentence was appropriate and that it did not exceed the statutory maximum.")
The Sentencing Guidelines have been advisory and not mandatory ever since the Supreme Court decided United States v. Booker, 125 S.Ct. 738 (2005). Perry v. United States, 877 F.3d 751, 754 (7th Cir. 2017). Cooley was sentenced in 2010, long after the Supreme Court declared the Sentencing Guidelines to be merely advisory.
Petitioner tries to distinguish Hawkins by arguing that, unlike the petitioner in Hawkins, he is raising a constitutional challenge to his sentence, i.e., that his sentence violates his due process right to be sentenced based on accurate information. According to petitioner, his sentence was based on inaccurate information because his prior conviction for second degree robbery was incorrectly counted as crime of violence for purposes of the career offender enhancement.
Petitioner's attempt to distinguish Hawkins should be rejected. A defendant does have a due process right to be sentenced based on accurate information. U.S. ex rel. Welch v. Lane, 738 F.2d 863, 864 (7th Cir. 1984), citing United States v. Tucker, 92 S.Ct. 589, 591 (1972) and Townsend v. Burke, 68 S.Ct. 1252 (1948). That right is violated by reliance on factually incorrect information at sentencing. In Townsend, the sentencing court mistakenly thought that the defendant had been convicted on several charges when he in fact had been acquitted or the charges had been dropped. Townsend, 68 S. Ct. at 1255. In Tucker, the sentencing court was unaware that two of the defendant's prior convictions were invalid because they had been obtained in violation of his right to counsel. Tucker, 92 S. Ct. at 592. In Welch, the sentencing court thought that the defendant had been previously convicted of armed robbery, but the prior conviction was only for robbery. Welch, 738 F.2d at 865. See also, United States v. Melendez, 819 F.3d 1006, 1012 (7th Cir. 2016) (drug quantity); United States v. Jones, 454 F.3d 642, 652 (7th Cir. 2006) (court considered prior conviction that had been overturned);
Here, the allegedly inaccurate information is not the fact of the prior conviction; it is the classification of the prior conviction as a crime of violence. The question of whether a prior crime qualifies as a crime of violence is a legal question, not a factual one. Petitioner cites no case wherein an erroneous determination of a legal question was held to be the kind of "inaccurate information" which violated due process. This Court's independent research has not identified such a case.
In short, there is no meaningful way to distinguish Hawkins from this case. The issue in Hawkins was the same as the issue raised by petitioner here: the use of a prior conviction that would allegedly no longer qualify as a predicate conviction for the career offender enhancement under current law. In its supplemental opinion on denial of rehearing in Hawkins, the Court succinctly summarized its holding: "an error in calculating a defendant's guidelines sentencing range does not justify postconviction relief unless the defendant had, as in Narvaez v. United States, 674 F.3d 621 (7th Cir.2011), been sentenced in the pre-Booker era, when the guidelines were mandatory rather than merely advisory." Hawkins, 724 F.3d at 916. Under the binding precedent of Hawkins, the petition should be dismissed.
In addition, this collateral attack is barred by the waiver in the plea agreement.
There is no doubt that a plea agreement may include a valid waiver of the right to appeal and to file a collateral attack, and that such waivers are generally enforceable, with limited exceptions. Solano v. United States, 812 F.3d 573, 577 (7th Cir. 2016). The limited exceptions are where the plea agreement itself was involuntary, the defendant argues ineffective assistance of counsel with regard to the negotiation of the plea, the sentencing court relied on a constitutionally impermissible factor such as race, or the sentence exceeded the statutory maximum. Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011). A waiver of the right to bring a collateral attack on a conviction or sentence bars a § 2241 petition; the waiver does not make the remedy afforded by § 2255 inadequate or ineffective so as to open the door to a § 2241 petition. Muse v. Daniels, 815 F.3d 265, 266 (7th Cir. 2016). Further, a subsequent change in the law does not render an appeal waiver involuntary. United States v. Vela, 740 F.3d 1150, 1151 (7th Cir. 2014).
The Seventh Circuit has enforced appeal waivers against challenges to career offender designations. United States v. Smith, 759 F.3d 702 (7th Cir. 2014); United States v. McGraw, 571 F.3d 624 (7th Cir. 2009); United States v. Standiford, 148 F.3d 864 (7th Cir. 1998). McGraw is instructive here. Similar to petitioner, McGraw argued that the convictions used categorize him as a career offender no longer constituted crimes of violence after Begay v. United States, 128 S. Ct. 1581 (2008). The Seventh Circuit enforced the waiver, noting that "We have consistently rejected arguments that an appeal waiver is invalid because the defendant did not anticipate subsequent legal developments." McGraw, 571 F.3d at 631.
Petitioner argues that the waiver should not be enforced because, at sentencing, he was "only asked if he understood he was given [sic] up his right to file a § 2255" and not "any post-conviction proceeding." See, Doc. 19, pp. 11-12. He argues that this renders the agreement ambiguous and unenforceable, citing El v. Acting Warden, 2017 WL 3929309 (C.D. Ill. September 7, 2017). His argument should be rejected.
Petitioner offers nothing to verify what took place at sentencing. He has not filed a transcript of the sentencing hearing. The docket in his criminal case indicates that he enquired about getting a copy of the transcript, but there is no indication that a transcript has been ordered or prepared. In any event, El is of no help to him because both the plea colloquy and the waiver in that case were ambiguous as to whether the waiver extended only to an attack under § 2255. El, 2017 WL 3929309, at *3. Here, however, the language of the waiver is not ambiguous. It clearly specifies that petitioner is waiving "all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to Title 28, United States Code, Section 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel." Further, El is a district court case and is nonprecedential. Van Straaten v. Shell Oil, 678 F.3d 486, 490 (7th Cir. 2012).
Petitioner also makes a stab at an allegation of ineffective assistance of counsel by asserting, without elaboration, that counsel was ineffective in allowing him to waive his right to file a post-conviction proceeding. However, such waivers are regularly enforced and allowing a defendant to agree to a waiver does not automatically constitute ineffective assistance. Petitioner received a substantial benefit in return for his plea of guilty in that the government dismissed one of the counts against him. The dismissed count had a possible maximum sentence of 25 years. 18 U.S.C. § 2113(d). He has not demonstrated ineffective assistance of counsel in relation to the plea agreement.
Conclusion
For the foregoing reasons, the undersigned RECOMMENDS that the District Judge GRANT the Motion to Dismiss (Doc. 13) and dismiss this action with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties may object to any or all of the proposed findings and recommendations set forth above. The failure to file a timely objection may result in the waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004).
IT IS SO ORDERED.
DATE: July 25, 2018.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE