Opinion
Case No. 99 C 1778
June 16, 2000
MEMORANDUM OPINION AND ORDER
Petitioner William Hertzog Thompson ("Thompson") is currently serving a sentence of 51 months. In March of 1998, Thompson plead guilty to bank robbery under 18 U.S.C. § 2113. Claiming he received ineffective assistance of counsel, Thompson now moves the court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. For the following reasons, the court denies Thompson's § 2255 motion.
Background
Thompson was charged with bank robbery under 18 U.S.C. § 2113(a). He went on a two month "robbery spree," in which he robbed or attempted to rob two dry cleaning establishments, a cigar store, a bakery and two banks. Following his arrest, Thompson confessed to all of the aforementioned conduct and plead guilty to two counts of bank robbery. Prior to sentencing, Thompson filed a motion for downward departure based on exceptional acceptance of responsibility and the effects of his child abuse. The court denied his motion and sentenced Thompson to 51 months; a sentence at the low end of the applicable guideline range.
Analysis
Thompson now asks the court to reduce his sentence pursuant to 28 U.S.C. § 2255 which provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
In his plea agreement, Thompson expressly waived the right to challenge his sentence in a 28 U.S.C. § 2255 collateral attack. As a result, ordinarily, Thompson would not be permitted to bring this motion before the court. However, as this court noted in its 1999 order, this does not completely foreclose review. (United States v. Thompson, No. 99C1778, Order, May 12, 1999.)
When a defendant challenges the constitutionality of his conviction or sentence after having waived the right to do so in a plea agreement, "the right to mount a collateral attack pursuant to § 2255 survives only with respect to those discrete claims which relate directly to the negotiation of the waiver," Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1998). Ineffective assistance of counsel, which is what Thompson argues, is one of those discrete claims. "Justice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself — the very product of the alleged ineffectiveness. To hold otherwise would deprive a defendant of an opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance of delinquent representation." Id. Therefore, the court may consider Thompson's § 2255.
Thompson maintains that when he signed his plea agreement, he did so prior to any filing of downward departure motions and without a full understanding of the waiver contained in paragraph 11. He believes that because of the ineffective assistance he received, he was forced to waive the rights contained in Paragraphs 11 and 14 before he truly understood the consequences of doing so. He also argues that his counsel should have raised several alternative theories for downward departure that would have resulted in a lesser shorter sentence.
Paragraph 11 reads, in relevant part:
Defendant understands that by pleading guilty he is waiving all the rights set forth in the prior paragraph. Defendant's attorney has explained those rights to him, and the consequences of his waiver of those rights. Defendant further understands he is waiving all appellate issues that might have been available if he had exercised his right to trial. . . . Acknowledging all of this, the defendant knowingly waives the right to appeal any sentence within the maximum provided in the statute of conviction (or the manner in which that sentence was determined). . . . 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.
Additionally, Paragraph 14 of the Plea Agreement reads, in relevant part:
. . . The defendant further acknowledges that if the court does not accept the sentencing recommendation of the parties, the defendant will have no right to withdraw his guilty plea.
Claims of ineffective assistance of counsel not raised on direct appeal can be heard on a § 2255 petition. See Nichols v. United States, 75 F.3d 1137, 1141 (7th Cir. 1996). However, "counsel is presumed effective." Arrango-Alvarez v. United States, 134 F.3d 888, 892 (7th Cir. 1998). To establish ineffective assistance of counsel, "a petitioner must show that his counsel's representation fell below an objective standard of reasonableness and that the deficient performance rendered the proceedings unfair or unreliable." Buggs v. United States, 153 F.3d 439, 442 (7th Cir. 1998); see Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
Petitioner's burden is a heavy one. To show that counsel's performance is deficient, he must "point out and make clear to this court the specific acts or omissions forming the basis of his claim."Arrango-Alvarez, 134 F.3d at 892. A court will then determine "whether, under all the circumstances, these alleged acts or omissions were made outside the wide range of professionally competent assistance." Id. The court finds that, on the facts as presented. Thompson is unable to meet his burden.
In support of his ineffective assistance of counsel claim, Thompson contends that his lawyer never explained that when he waived his right to bring a collateral attack under § 2255, he was waiving his right to challenge the constitutionality of his conviction and sentence. According to Thompson, at the time he signed the plea, he thought he had retained his right to seek any post-conviction remedy. To prevail, Thompson "must allege facts indicating both that the counsel's representation fell below an objective standard of reasonableness, and that a reasonable probability exists that but for the counsel's errors, the result of the proceeding would have been different." United States v. Joiner, 847 F. Supp. 604, 609 (N.D. Ill. 1994), citing Key v. U.S., 806 F.2d 133, 139 (7th Cir. 1986) (citations omitted). Given the representations Thompson made during the Plea Agreement hearing, the court finds that Thompson' argument has little merit.
Thompson also makes the argument that the courts have held that plea agreements containing a waiver of the right to collaterally attack a conviction or sentence are unenforceable. He is wrong. See Mason v. United States, No. 99 C 2463, 2000 WL 562807, *4 (7th Cir. 2000) (affirming district court's denial of petition for post-conviction relief where defendant waived right to do so in his plea agreement).
The record of Thompson's sentencing hearing suggests that Thompson's counsel did provide him adequate counsel concerning the consequences of his plea agreement. At the hearing, Thompson represented that he understood the language in Paragraph 11 and 14, that he and his counsel discussed the various provisions of the plea agreement, and that he understood that by entering into the agreement he was waiving his right to challenge his conviction on appeal and under § 2255. (Plea Agreement Hearing, Sept. 26, 1997.) Both the court and Thompson's counsel worked to ensure that Thompson knew the consequences of entering into the plea agreement. As such, the court concludes that his counsel acted reasonably in its advice concerning the plea agreement.
Thompson also seems to suggest that his counsel erred in not submitting a motion for downward departure based upon his diminished capacity, aberrant behavior, and family circumstances. It appears that he has waived the right to raise these issues. To the extent Thompson's ineffective assistance of counsel claim relates only to his attorney's performance with respect to sentencing, it has nothing to do with the issue of a deficient negotiation of the waiver. As such, Thompson waived his right to seek post-conviction relief on these issues. See Mason v. United States, No. 99 C 2463, 2000 WL 562807, *4 (7th Cir. 2000).
Even if the court were to reach these questions, Thompson's arguments would fail. To satisfy the prejudice prong of an ineffective assistance claim based upon a Guidelines issue, Thompson must show that his lawyer's failure to pursue the issue resulted in a significant increase in the sentence. See Durrive v. United States, 4 F.3d 548, 551 (7th Cir. 1993). Although Thompson's attorney did file a motion for downward departure, he did so on the basis of acceptance of responsibility and the effects of child abuse. Where counsel makes a reasonable, strategic decision not to pursue a particular theory for downward departure, this is not proof of ineffective assistance.
On February 27, 1998, this court entered a Memorandum Opinion and Order, denying Thompson's motion. See United States v. Thompson, No. 97 CR 443, 1998 WL 102717 (N.D. Ill. Feb. 27, 1998). The court found that Thompson had not performed any extraordinary acts worthy of an additional downward departure for acceptance of responsibility and had not suffered child abuse so severe as to render his an extraordinary case warranting a child abuse departure. Id. at 2-3.
It is unlikely that Thompson would prevail on any of the alternative theories for downward departure that he now presents. The court may grant a downward departure for diminished capacity, aberrant behavior, or family circumstances where the situation warrants such a departure. The decision not to do so lies within the discretion of the sentencing judge. See United States v. Newman, 148 F.3d 871, 878 (7th Cir. 1998) (diminished capacity); United States v. Williams, 202 F.3d 959, 964 (7th Cir. 1999) (aberrant behavior); United States v. Guy, 174 F.3d 859, 861 (7th Cir. 1999) (family circumstances). A review of the information provided in Thompson's petition suggests that he would not qualify for a downward departure based on diminished capacity, aberrant behavior, or family circumstances.
The Sentencing Guidelines allow for a downward departure "if the defendant committed the offense while suffering from a significantly reduced mental capacity." U.S.S.G. § 5K2.13. A defendant has a "significantly reduced mental capacity" if she "has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful." United States v. Thomas, 181 F.3d 870, 872-873 (7th Cir. 1999). Thompson argues that the Guidelines do not bar him from receiving a diminished capacity departure, even though the crime he committed is usually classified as a violent one. Because of this and because he was not on drugs or alcohol when he committed his crime and is not a danger to the public. Thompson maintains that he should receive a diminished capacity departure.
Although the new guidelines suggest that a defendant convicted of bank robbery may no longer be automatically precluded from receiving a diminished capacity departure, in this case, the facts suggest Thompson's crime was violent in nature. See United States v. MacFadzean, No. 98 CR 754, 1998 WL 1144909, *5 (N.D. Ill. Dec. 8, 1999) (noting that defendant might qualify for diminished capacity even though he committed bank robbery where the facts show that he was unarmed and posed no serious threat of violence). However, for the sake of completeness, the court will consider whether the facts warrant departure for diminished capacity, despite the nature of his crime.
Thompson claims his diminished capacity was the result of his (1) inability to care for his son; (2) his financial ruin; (3) his clinical depression; and (4) his wife's addiction to alcohol. While Thompson's life may have been very stressful, there is no evidence before the court that he was so depressed that he was unable to understand the wrongfulness of his actions and exercise the power of reason, or so out of control that he could not prevent himself from committing robbery. On the contrary, Thompson suggests that it was his dire financial situation and his desire to take care of his son that drove him to commit the robberies, not some uncontrollable impulse or emotional state. See Thomas, 181 F.3d at 873 (affirming district court's refusal to grant departure since the court did not believe that defendant had proved that her ability to control her behavior was impaired).
Thompson's argument for an aberrant behavior departure also fails. InUnited States v. Carey, 895 F.2d 318 (7th Cir. 1990), the Seventh Circuit explains that a departure is legally permissible when a defendant's conduct, "contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable."Carey, 895 F.2d at 325. In this case, Thompson spent two months planning and carrying out not just one robbery, but six. Although Thompson may have been an exemplary citizen prior to the commission of these robberies, under Carey, a "finding that the defendant's actions constituted such behavior to warrant a departure must be . . . based on more than the defendant's high standing in the community and his lack of a prior criminal record." Id. at 324.
Thompson asks this court to apply the test set forth in United States v. Grandmaison, 77 F.3d 555, 563 (1st Cir. 1996). However, This court is bound by the rules set forth in Carey, and may not simply apply a test adopted by another circuit.
As for his family circumstances argument, this court already rejected Thompson's argument that his sentence should be reduced due to his "financial problems, marital problems, and his son's dental bills."United States v. Thompson, No. 97 CR 443, 1998 WL 102717, *2 (N.D. IIII. Feb. 27. 1998) ("he advances no legal argument that his family circumstances justify a downward departure, nor does he cite any case law that supports such a theory"). Thompson now maintains that because of his wife's alcoholism, he fears that his son's emotional and physical well-being will be jeopardized if the child is left solely in his mother's care. He asks the court to view his wife's alcoholism as if it is a fatal disease, and reduce his sentence so that he can return home and care for his son.
Under U.S.S.G. § 1B1.1, "the traditional purpose of a downward departure under the Sentencing Guidelines based on family circumstances is to grant leniency to a convict in order to allow him to fulfill his responsibilities to his dependent family." United States v. Cruz-Guevara, 209 F.3d 644, 648 (7th Cir. 2000). Usually, when granting a family circumstances departure, the court does so on the basis of evidence from medical professionals concerning the potential harm facing family members left behind upon the defendant's incarceration. Thompson has not presented any evidence, medical or otherwise, to suggest that the court would have granted a family circumstances departure based upon his wife's illness. Without more, the court cannot conclude that his counsel erred in not raising this argument.
The court therefore finds that counsel's failure to argue for a departure on the grounds Thompson now asserts, did not cause Thompson to receive a sentence that was significantly greater than he would have otherwise received. The counsel's decision not to pursue these alternative theories was not unreasonable and did not prejudice Thompson. As such, the court must deny Thompson's petition for habeas corpus relief.
Due to an error in the record, the existence of a pending motion in this case was not brought to the court's attention and did not show up on the court's tracking system. Once it was discovered, the court ruled.