Opinion
No. 01 C 6418 (98 CR 896)
August 30, 2001
MEMORANDUM OPINION AND ORDER
Shortly before his case was to go to trial, defendant Tyrie Bell pleaded guilty to one count of a four-count indictment. In accordance with a plea agreement, defendant pleaded guilty to one count charging him with knowingly and intentionally distributing approximately 18 grams of cocaine base (crack) in violation of 21 U.S.C. § 841 (a)(1). Under the plea agreement, the government agreed to "withdraw the Information providing notice of prior convictions for purpose of the mandatory life imprisonment sentencing provisions of 21 U.S.C. § 841 (a)(1) and 851 (a)." Plea Agreement ¶ 18 (first). The day before defendant was to be sentenced, he filed a pro se motion to withdraw his plea and appoint new counsel. New counsel was appointed, but the motion to withdraw the plea was subsequently denied. See United States v. Bell, 1999 WL 1100924 (N.D. Ill. Dec. 2, 1999). Thereafter, defendant was sentenced based on being a Career Offender with a potential life sentence See U.S.S.G. § 4B1.1(A)) and without receiving any reduction for acceptance of responsibility (See U.S.S.G. § 3E1.1). The applicable guideline range was determined to be 360 months to life and defendant was sentenced to 360 months' incarceration. Defendant appealed, but the appeal was dismissed as frivolous on the ground that the plea agreement included a waiver of the right to appeal. See United States v. Bell, 234 F.3d 1274, 2000 WL 1206668 (7th Cir. Aug. 22, 2000) (unpublished order).
There are two paragraphs numbered 18.
On August 17, 2001, defendant filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Defendant contends that the two counsel that represented him provided ineffective assistance. The waiver contained in the plea agreement does not waive such claims. However, because the motion is plainly without merit, it will be summarily denied without requiring the government to answer. See Rules Governing § 2255 Proceedings Rule 4(b).
The waiver provides in part: "The defendant also hereby expressly and knowingly waives and gives up any and all rights to attack his guilty plea, conviction, and sentence in any post-conviction proceeding including the filing of a petition under 28 U.S.C. § 2255, § 2241 or any other post-conviction motion or petition, except for petitions brought under 28 U.S.C. § 2255 for ineffective assistance of counsel." Plea Agreement ¶ 13.
First, defendant contends counsel was ineffective for advising him to agree to an ambiguous plea agreement. The agreement is not ambiguous. Paragraph 18 clearly states that the § 851(a) information will only be dismissed as to the mandatory life sentence under § 841(a)(1). It does not state that it will be dismissed as regards the Career Offender enhancement. To the contrary, the plea agreement specifically provides that the government contends that the Career Offender enhancement would be applicable. See Plea Agreement ¶ 7(b). Moreover, notice under § 851 is not required for applying the Career Offender enhancement. Damerville v. United States, 197 F.3d 287, 289 (7th Cir. 1999), cert. denied, 529 U.S. 1136 (2000); United States v. Hernandez, 79 F.3d 584, 588 n. 4 (7th Cir. 1996), cert. denied, 520 U.S. 1250, 1251 (1997). Even with the § 851 notice withdrawn in its entirety, the Career Offender enhancement could still apply. Since there was no ambiguity and no possible effect on defendant's sentence, this contention cannot support an ineffective assistance of counsel claim.
Counsel was not ineffective for failing to further press the acceptance of responsibility issue. Defendant attempted to withdraw his plea, including by filing an additional pro se motion just before he was finally sentenced. He also continued to dispute that he distributed crack, instead contending that he distributed cocaine. There is no reasonable probability that a different argument or presentation by counsel would have resulted in defendant receiving a reduction for acceptance of responsibility. Any ineffective assistance of counsel claim related to acceptance of responsibility is without merit.
Last, defendant contends that counsel was ineffective for failing to challenge one of the prior convictions that supported the Career Offender enhancement. Defendant contends this conviction could not be considered because it was not final until affirmed by the Iowa Supreme Court in October 2000, after he was sentenced on the federal conviction. The pendency of the state court appeal, however, did not preclude consideration of the conviction for Career Offender purposes. See U.S.S.G. § 4A1.2(l); United States v. Simpson, 94 F.3d 1373, 1381 (10th Cir.), cert. denied, 519 U.S. 975 (1996); United States v. Howard, 991 F.2d 195, 200 (5th Cir.), cert. denied, 510 U.S. 949 (1993); Cofske v. United States, 143 F. Supp.2d 85, 87 (D. Mass. 2001). Since this contention lacks merit, counsel could not have been ineffective for failing to raise it.
Since none of defendant's asserted claims state a colorable basis for relief, defendant's § 2255 motion will be summarily denied.
IT IS THEREFORE ORDERED that, upon review of defendant's motion, the attachments to the motion, and the court's records, defendant's motion to vacate, set aside, or correct sentence is summarily denied. The Clerk of the Court is directed to enter judgment in favor of the United States and against defendant denying defendant's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. If defendant wishes to appeal this judgment, he must file a Notice of Appeal to the United States Court of Appea1s for the Seventh Circuit with the Clerk of the Court, United States District Court for the Northern District of Illinois, 219 South Dearborn Street, 20th Floor, Chicago, Illinois 60604, within sixty (60) days of the entry of the judgment in this case. Any notice of appeal should be accompanied by a request for a certificate of appealability, including a statement as to why a certificate should issue. See 28 U.S.C. § 2253; Fed.R.App.P. 22(b).