United States District Court, D. Oregon
Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Oregon, Attorney for Petitioner,
S. Amanda Marshall, United States Attorney, Natalie K. Wight, Assistant United States Attorney, Portland, OR, Attorneys for Respondent.
OPINION AND ORDER
MICHAEL W. MOSMAN, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2241 challenging the legality of his federal sentence as enhanced pursuant the Armed Career Criminal Act. Because the Middle District of Pennsylvania has already determined that petitioner is not entitled to relief on this claim, the Petition for Writ of Habeas Corpus (#2) is dismissed.
On July 22, 2003, petitioner pleaded guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) in the Southern District of Illinois. The District Court applied a career offender enhancement in light of petitioner's two prior Illinois state convictions for aggravated battery. As a result, the court sentenced petitioner to 188 months in prison. If not for the prior state convictions and resulting enhancement, petitioner's sentence would likely have fallen under the Guidelines range of 57-71 months.
As part of his plea agreement, petitioner agreed to waive future challenges to his sentence:
Defendant knowingly and voluntarily waives the right to appeal any sentence within the maximum provided in the statute(s) of conviction (or the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever, including any ordered restitution, in exchange for the concessions made by the United States in this plea agreement. The Defendant also waives his right to challenge his sentence or the manner in which it was determined in any collateral attack, including but not limited to a motion brought under Title 28, United States Code, Section 2255.
Respondent's Exhibit 3, p. 3.
Notwithstanding this waiver, petitioner proceeded to challenge the legality of his sentence. The District Court for the Middle District of Pennsylvania recently summarized much of petitioner's procedural history in a 28 U.S.C. § 2241 habeas action petitioner filed in that court:
[P]etitioner appealed his sentence pro se to the United States Court of Appeals for the Seventh Circuit. [ Veach v. U.S., 2008 U.S. Dist. LEXIS 55257 (S.D. Ill.) at *3-4]. The Seventh Circuit rejected petitioner's contention that Booker v. United States, 543 U.S. 220 (2005) established an exception to his appellate waiver and dismissed his appeal. Id. at *3. On July 18, 2006, petitioner, through current counsel, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the ground that trial counsel was ineffective during plea negotiations. Id. at *3-4. The trial judge acknowledged that otherwise valid appeal waivers do not preclude ineffective assistance claims that have their basis in plea negotiations. Id. at *19-20.... The court thus conducted a merits review of the petitioner's ineffective assistance claim to the extent it pertained to the appellate waiver and ultimately concluded that the petitioner had failed to satisfy either element of the ineffective assistance test set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984). Id. at *19-24.
In doing so, the court emphasized the voluntariness of petitioner's plea agreement and his appellate waiver, noting that the plea agreement was signed by petitioner and that petitioner affirmatively responded to the sentencing court's thorough inquiries as to whether petitioner's plea agreement, and in particular the appellate waiver, were knowing and voluntary. Id. ("Veach's statements... during the... change of plea hearing clearly illustrate that he knowingly and voluntarily entered into the plea agreement and specifically accepted the appellate waiver terms of the agreement."). The [sentencing] court thus enforced the appellate waiver and dismissed the § 2255 motion.
Petitioner did not appeal the denial of his Section 2255 motion. Instead, he filed a motion for a certificate of appealability in the Seventh Circuit, which the Circuit directed the district court to file as a notice of appeal. See Veach v. United States, 2010 U.S. Dist. LEXIS 106975, *2 (S.D. Ill. Oct. 6, 2010). Therein, petitioner asked the court to remand his case to the district court for resentencing without the career offender enhancement pursuant to the Supreme Court's recent decisions in Chambers v. United States, 555 U.S. 122 (2009) and Begay v. United States, 553 U.S. 137 (2008). Veach, 2010 U.S. Dist. LEXIS 106975 at *2. The district court declined to issue a certificate of appealability, and concluded that while the Begay rule is retroactively applicable, petitioner had executed a broad appellate waiver, found by the court to be valid and enforceable, thus precluding petitioner's claim. Id . at *3-5. Petitioner appealed to the Seventh Circuit, which dismissed his appeal as untimely. However, noting Begay's retroactive applicability, the panel observed that Veach's argument regarding ...