Lawuary v. U.S.
Decision Date | 24 April 2002 |
Docket Number | No. 01-3299.,01-3299. |
Parties | Charlie LAWUARY, Petitioner, v. UNITED STATES of America, Respondent. |
Court | U.S. District Court — Central District of Illinois |
Charlie Lawuary, Greenville, IL, pro se.
David E. Risley, Assistant U.S. Attorney, Springfield, IL, for Respondent.
This cause is before the Court on Petitioner's petition under 28 U.S.C. § 2255.
On November 5, 1997, Petitioner was charged in a two-count indictment with possession of cocaine base (crack), with the intent to distribute, in violation of 21 U.S.C. § 841(a).
On May 11, 1997, Petitioner was arrested after officers conducted a search and discovered a baggie containing 21.3 grams of cocaine base located in Petitioner's overalls. Count I of the indictment charged Petitioner with possession of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).
On August 24, 1997, Petitioner ran from a vehicle stopped for a traffic violation. Officers eventually tackled Petitioner in an effort to subdue him. As he was tackled, Petitioner threw a baggie containing 64.3 grams of cocaine base. Count 2 charged Petitioner with possession of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
Pursuant to a plea agreement, Petitioner pleaded guilty to Count 2 of the indictment on March 9, 1998. In the plea agreement, Petitioner reserved the right to appeal the Court's denial of his motion to suppress and to contest any finding that his prior criminal record subjected him to a mandatory life sentence. See 21 U.S.C. § 841(b)(1)(A). After admitting that he had two previous convictions for felony drug offenses, Petitioner was sentenced to life in prison.
On direct appeal, Petitioner argued that this Court erred in denying his motion to suppress and that the Government failed to provide adequate notice of the previous convictions upon which it was relying to enhance Petitioner's sentence. Petitioner's conviction and sentence were affirmed by the Seventh Circuit in an opinion issued May 1, 2000. United States v. Lawuary, 211 F.3d 372 (7th Cir.2000).
Petitioner's Petition for Writ of Certiorari with the Supreme Court was denied on October 2, 2000. On September 30, 2001, Petitioner filed this Petition.
Under 28 U.S.C. § 2255:
A prisoner in custody under sentence ... 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.
28 U.S.C. § 2255. However, a petitioner may not raise constitutional errors in a § 2255 motion unless he has raised these errors on direct appeal. "Constitutional errors not raised on direct appeal may not be raised in a § 2255 motion unless the defendant can demonstrate either: (1) both good cause for his failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims; or (2) that the district court's refusal to consider the claims would lead to a fundamental miscarriage of justice." McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir.1996). Petitioner asserts several grounds for his § 2255 Motion.
First, Petitioner alleges that the Court acted in violation of the Fifth Amendment when it refused to allow Petitioner to maintain his not guilty plea. In essence, Petitioner is asserting that his guilty plea was involuntary. Petitioner failed to raise this issue on direct appeal, so his ability to raise it here depends upon whether he can prove good cause and actual prejudice or actual innocence. Murray v. Carrier, 477 U.S. 478, 489, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ( ). Petitioner has made no attempt to establish cause and prejudice in relation to this claim.
At the change of plea hearing, Petitioner interrupted the hearing to inform the Court that he wanted to plead not guilty and proceed to trial. The following is taken from the change of plea hearing transcript:
(Change of Plea Hearing, March 9, 1998, Pages 15-20). Once Petitioner learned that he could address his concerns before sentencing, he was satisfied with his decision to plead guilty.3 The Court proceeded to instruct Petitioner about the possible penalties he would face under either scenario — whether he had been convicted of one or two prior felony drug offenses. After describing the...
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