Opinion
No. 2:05-CV-4 PS, Arising from No. 2:03-CR-91 PS.
March 14, 2005
ORDER
David Hardaway, a federal prisoner, filed a motion pursuant to 28 U.S.C. § 2255, seeking to have his sentence vacated because, he contends, the Assistant United States Attorney lied during the sentencing hearing about the level of his cooperation with law enforcement and because he received a two-point enhancement without a jury determination of the facts.
Hardaway's challenge regarding the enhancement is most likely based on the recent Supreme Court decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004) and United States v. Booker, 125 S. Ct. 738 (2005). However, Hardaway was sentenced on June 22, 2004, long before Booker was decided by the Supreme Court on January 12, 2005, and even before Blakely was decided on June 24, 2004. As a result, Booker does not apply to this case. See McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005) (" Booker does not apply retroactively to criminal cases that became final before its release").
A motion under § 2255 allows a federal prisoner "in custody . . . claiming a right to be released" to attack his sentence on the grounds that it was imposed "in violation of the Constitution or laws of the United States, or that the court was without jurisdiction . . ., or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255 ¶ 1. "If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." Rule 4, Rules Governing Section 2255 Proceedings for the United States District Courts.
Pursuant to a written amended plea agreement, Hardaway pleaded guilty to one count of unlawful possession of a firearm by a felon, in violation of Title 18, United States Code, Section 922(g)(1). Two other related firearms counts were dismissed. The government filed a motion for a downward departure for substantial assistance pursuant U.S.S.G. § 5K1.1 in which it sought a two level downward departure.
In short, the evidence presented at the sentencing hearing was that Hardaway voluntarily cooperated with law enforcement officials and supplied information that assisted in the arrest of suspects involved in a quadruple homicide. While Hardaway was detained at the Lake County jail on the charges arising from this case, information came to him concerning a quadruple homicide that had taken place in Gary, Indiana. Hardaway, on his own initiative, attempted to call the Gary Police Department to share the information that he had, but the Gary P.D. would not accept the collect call. Hardaway then asked to speak with a detective with the Lake County police department.
Hardaway spoke with Detective Shaw Spurlock in January 2004. Hardaway told Detective Spurlock that he knew the victims and advised him of his knowledge of possible suspects and weapons used in the homicide. (Defendant's Ex. 3) Hardaway identified his cousin, James Parks, as a suspect. Detective Spurlock relayed this information to Gary police investigator, Thomas Branson, who "indicated at that time, there were no positive suspects in the homicide." ( Id.) In part based on Hardaway's tip, along with surveillance and other credible sources, James Parks and two others were arrested and charged with the murders.
Detective Spurlock wrote a letter concerning Hardaway's cooperation that was introduced during his sentencing hearing. ( See Defendant's Ex. 3.)
After hearing from the defendant and reviewing the exhibits, the Court found that a two level departure was too small based on Hardaway's actions. Due to the significance and the usefulness of Hardaway's cooperation and the fact that there was significant danger and risk to himself the Court departed four levels, instead of two. ( See [Doc. 27].) The only reason that the Court did not depart more was the extent of Hardaway's criminal history. Hardaway had a total criminal history score of 23 points pursuant to U.S.S.G., Ch. 4. The highest criminal history category under the Guidelines is a Category VI (13 or more points). Clearly, if the Criminal History Categories went higher than VI, Hardaway would have been in a much higher Category. Hardaway had a very long and extensive criminal history. This is all to say that the Court's decision not to depart more was not based on any representation made by the Assistant U.S. Attorney during the sentencing hearing. As a result, Hardaway was sentenced to a term of imprisonment of 51 months of incarceration, to be followed by a 3-year term of supervised release.
Without the benefit of any downward departure, Hardaway's applicable guideline range for imprisonment was 77 to 96 months.
Here, Hardaway's written amended plea agreement contains an express waiver of his right to file a § 2255 motion stating in pertinent part:
. . . I expressly waive my right to appeal my conviction and sentence to any Court on any ground. I also agree not to contest my conviction and sentence imposed, or the manner in which my conviction and sentence was determined or imposed on any ground in any appeal under Title 18, United States Code, Section 3742 or in any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255.
([Doc. 26], emphasis in original.) In the change of plea hearing held on January 8, 2004, the Court carefully went over the entire plea agreement with Hardaway, including paragraph 9 quoted from above.
A waiver of the right to seek relief pursuant to § 2255 in a written plea agreement is valid and enforceable absent a claim that the waiver was not knowing and voluntary or that counsel was ineffective in connection with the negotiation of the waiver itself. See United States v. Rhodes, 330 F.3d 949, 952 (7th Cir. 2003); Mason v. United States, 211 F.3d 1065, 1068 (7th Cir. 2000); Jones v. United States, 167 F.3d 1142 (7th Cir. 1999).
All of the issues Hardaway seeks to raise fall squarely within the waiver language of his amended plea agreement. Moreover, Hardaway has not alleged that he did not understand his plea agreement, nor does he allege that he received ineffective assistance of counsel in regard to his negotiation and acceptance of the agreement. In these circumstances, waivers of the right to appeal and/or to file a collateral attack are generally enforceable. The Court remains satisfied that Hardaway voluntarily, knowingly and intelligently waived his right to file the present § 2255 motion.
For the foregoing reasons, Hardaway's § 2255 motion is summarily DENIED and DISMISSED with prejudice pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts. The clerk shall enter final judgment accordingly.