Opinion
01 C 50353
December 27, 2001
MEMORANDUM OPINION AND ORDER
Desmond Cavender, a federal prisoner convicted upon his guilty plea of conspiracy to possess with intent to distribute cocaine base, 21 U.S.C. § 846 and sentenced to 312 months of imprisonment on September 11, 1998, has filed this motion on October 9, 2001 under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He raises claims of defective indictment under Apprendi v. New Jersey, 530 U.S. 466 (2000), an involuntary and unintelligent guilty plea caused by ineffective trial counsel, the court's lack of jurisdiction to sentence him because the United States did not file an information pursuant to 21 U.S.C. § 851(a) prior to his guilty plea, ineffectiveness of trial counsel for the failure to require the government to prove and allow this court to make factual findings as to the quantity and type of controlled substances involved, and ineffectiveness of appellate counsel for failing to raise more meritorious issues on his direct appeal in United States v. Cavender, 228 F.3d 792 (7th Cir. 2000), cert. denied sub nom. Buchanan v. United States, 121 S.Ct. 1965 (2001), in which his sentence was affirmed. The government has filed a response brief addressing the merits of these claims and has raised the issue of Cavender's waiver of his right to challenge his sentence in a collateral attack under 28 U.S.C. § 2255 in his written plea agreement.
A waiver of the right to file a motion under section 2255 is enforceable only if it is knowing and voluntary and if the defendant cannot establish a claim of ineffective assistance of counsel in connection with negotiating the agreement. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999); see also Mason v. United States, 211 E.3d 1065, 1069 (7th Cir. 2000) cert. denied 531 U.S. 1175 (2001). Here, Cavender has not challenged the voluntariness of the negotiations of the waiver in the plea agreement or that he received ineffective assistance of counsel with respect to the negotiation of the waiver. See Mason 211 F.3d at 1069. He does claim his guilty plea was involuntary and his counsel ineffective because counsel allowed him "to enter a plea agreement where the government breached the plea agreement." While Cavender has a right to challenge the voluntariness of his plea which is not waived by his plea agreement, see United States v. Jeffries, 265 F.3d 556, 577 (7th Cir. 2001), the record at his various court appearances, particularly at his guilty plea procteding and sentencing proceeding, show his involuntariness claim is frivolous as set forth in the government's response brief. His ineffective assistance of counsel claim is not clearly articulated but appears to be based on the same involuntariness claims belied by the record. All other claims raised are waived by his plea agreement. See Cavender 228 F.3d at 803. Even were the court to review these contentions, they are without merit as adequately pointed out by the government.
The section 2255 motion is denied.