Opinion
Cause No. IP00-1329-C-H/F
January 26, 2001
ENTRY ON PETITION FOR POST-CONVICTION RELIEF
Defendant Enrique Hernandez pled guilty to conspiring to possess cocaine with intent to distribute. On May 17, 2000, the court entered its sentence of 24 months in prison. The court's sentence reflected a downward departure from the applicable guideline range based on the government's motion under 5 U.S.S.G. § 5K1.1. The extent of the downward departure was also based on the fact that Hernandez had spent three months in state custody without getting credit toward his federal sentence, and the court's determination that he posed a very low risk of a repeat offense. The sentence was also consistent with the parties' plea agreement, pursuant to which Hernandez waived his right to appeal and his right to pursue post-conviction relief so long as the sentence was at the guideline range for offense level 19 or lower (as it was). No appeal was filed.
On August 22, 2000, however, Hernandez filed a petition for relief under 28 U.S.C. § 2255. His petition alleges that his lawyer was ineffective because he did not argue to the court for an even larger downward departure based on different treatment that deportable aliens receive in the Bureau of Prisons as compared to other inmates.
In response, the government has argued that the court should summarily dismiss Hernandez's petition. The government relies on Hernandez's waiver of his right to appeal and to pursue post-conviction relief, as well as his failure to appeal.
The waiver of the right to seek collateral relief was valid in this case. The Seventh Circuit has repeatedly enforced terms of plea agreements in which defendants, in return for benefits under the agreement, waive their right to appeal. See, e.g., United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999) (dismissing appeal and enforcing waiver of appeal); United States v. Woolley, 123 F.3d 627, 632 (7th Cir. 1997) (same). The same rule generally applies to habeas relief under § 2255: "A plea agreement that also waives the right to file a § 2255 motion is generally enforceable unless the waiver was involuntary or counsel was ineffective in negotiating the agreement." Bridgeman v. United States, 229 F.3d 589, 591 (7th Cir. 2000), citing Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000); accord, Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999).
The Seventh Circuit has explained that a defendant's waiver in a plea agreement of a right to pursue a habeas petition under § 2255 cannot bar a challenge to the effectiveness of counsel with respect to the plea negotiations and agreement themselves. Mason v. United States, 211 F.3d at 1069. Waivers are enforceable as a general rule; 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. Id., citing Jones v. United States, 167 F.3d at 1145. Hernandez does not claim here that his counsel was ineffective with respect to the negotiation of the plea agreement. Nor does Hernandez claim that the agreement (pursuant to which he received very substantial benefits) was involuntary or otherwise invalid. The waiver provision in the plea agreement is valid and requires dismissal of the present petition.
Even apart from the waiver provision in the plea agreement, however, Hernandez still would not be entitled to relief. Under Strickland v. Washington, 466 U.S. 668, 687-91 (1984), Hernandez must show both that his counsel was incompetent and that, but for his deficient performance, the result would have been different. See, e.g., Bridgeman v. United States, 229 F.3d at 592. The record does not show that Hernandez's counsel was ineffective with respect to sentencing (or any other aspect of the case). Also, there was no resulting prejudice from the supposed failure to raise the deportable alien issue at sentencing.
Hernandez did receive a downward departure, after all, as a result of a plea agreement that his lawyer negotiated with the government. In addition, the court is not aware of any cases treating a lawyer's failure to raise one argument in support of a lower sentence as ineffective assistance of counsel, at least where the lawyer had already negotiated a plea agreement that provided for a downward departure and offered grounds that persuaded the court to accept the downward departure.
In this circuit, departures for deportable aliens are permissible, but certainly not required or even encouraged. See United States v. Farouil, 124 F.3d 838, 846-47 (7th Cir. 1997) (such a departure is permissible in "exceptional" cases). In this case, there is no chance that Hernandez would have received an even lighter sentence if his attorney had added the deportable alien status to the already substantial grounds argued (and accepted) for a downward departure. Hernandez received a downward departure, and a sizable one. The undersigned judge imposed the sentence, and a further downward departure based on the deportable alien issue would not have been made even if the argument had been made. This was not an "exceptional" case that called for such a further departure.
Hernandez's failure to appeal also supports summary dismissal of his present petition. Hernandez and his counsel could have argued for a larger downward departure based on the differential treatment of deportable aliens at the time of the original sentencing. They did not do so. As a general rule, the failure to raise such an issue by timely appeal amounts to procedural default. See McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). "An issue not raised on direct appeal is barred from collateral review absent a showing of both good cause for the failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or if a refusal to consider the issue would lead to a fundamental miscarriage of justice." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Of course, if Hernandez had appealed, he would have encountered the bar of his waiver of the right to appeal, and he has not offered any basis for finding that waiver to have been invalid. A defendant who has waived his right to appeal cannot avoid the effects of that waiver by merely asserting the same claims under § 2255.
For the foregoing reasons, Hernandez's petition under section 2255 is hereby DISMISSED WITH PREJUDICE. Final judgment will be entered.