IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff/Respondent, )

)

vs. ) NO. 2:13-CR-148

) 2:15-CV-210 

MARIO STOKES, )

)

Defendant/Petitioner. )

OPINION AND ORDER

This matter is before the Court on the Motion Under 28 U.S.C.

Section 2255 To Vacate, Set Aside, or Correct Sentence By a Person

in Federal Custody, filed by Mario Stokes on June 2, 2015 (DE #61). 

For the reasons set forth below, the section 2255 motion is DENIED

without hearing. The Clerk is ORDERED to DISMISS this case WITH

PREJUDICE. The Clerk is ORDERED to distribute a copy of this order

to Mario Stokes, #18521-027, Elkton FCI, Federal Correctional

Institution, Inmate Mail/Parcels, P.O. Box 10, Lisbon, OH 44432, or

to such other more current address that may be on file for the

Defendant. Further, this Court declines to issue Defendant a

certificate of appealability.

BACKGROUND

On December 18, 2013, an indictment was filed against

Defendant, Mario Stokes (“Stokes”), charging him with three counts,

as follows: (1) possession with intent to distribute a quantity of
a mixture and substance containing a detectable amount of

marijuana, in violation of 21 U.S.C. § 841(a)(1); (2) being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1);

and (3) possessing a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c). Stokes entered into a

plea agreement with the Government, and the agreement was filed

with this Court on February 11, 2014. (DE #18). In it, Stokes

agreed to plead guilty to Count 2 of the Indictment. (Id., ¶ 7). 

The Government and Stokes also reached certain agreements that were

not binding on the Court. (Id.). Specifically, they agreed that

if Stokes continued to accept responsibility for his criminal

conduct, he should receive a two point, and if eligible, an

additional one point reduction in his offense level. (Id., ¶

7(c)(i)). They also agreed that, at sentencing, the Government

would move for dismissal of the remaining counts of the Indictment. 

(Id., ¶ 7(d)). 

In exchange for these benefits, the plea agreement contained

the following wavier:

I understand that the law gives a convicted

person the right to appeal the conviction and

the sentence imposed. I also understand that

no one can predict the precise sentence that

will be imposed, and that the Court has

jurisdiction and authority to impose any

sentence within the statutory maximum set for

my offense as set forth in this plea

agreement. With this understanding and in

consideration of the government’s entry into

this plea agreement, I expressly waive my

right to appeal or to contest my conviction

2
and all components of my sentence or the

manner in which my conviction or my sentence

was determined or imposed, to any Court on any

ground, including any claim of ineffective

assistance of counsel unless the claimed

ineffective assistance of counsel relates

directly to the negotiation of this plea

agreement, including any appeal under Title

18, United States Code, Section 3742 or any

post-conviction proceeding, including but not

limited to, a proceeding under Title 28,

United States Code, Section 2255[.] 

(Id., ¶ 7(f)).

Further, Stokes agreed that his attorney had “done all that

anyone could do to counsel and assist [him],” that he was offering

his guilty plea “freely and voluntarily and of [his] own accord,”

that “no promises [had] been made to [him] other than those

contained in [the] agreement,” and that he had not been “threatened

in any way by anyone to cause [him] to plead guilty in accordance

with [the] agreement.” (Id., ¶¶ 10-11). 

This Court held a change of plea hearing on February 18, 2014. 

(DE ##20, 73). When asked whether he was “fully satisfied with the

counsel, representation, and advice given to [him] in this case by

Mr. Soliday as [his] attorney,” Stokes replied “yes, sir.” (DE

#73 at 9-10). After Stokes read through paragraph 7 of his plea

agreement, the Court asked him whether he read it previously,

understood it, agreed with it, and was asking the Court to approve

it. (Id. at 10-11). Stokes answered yes to each of these

questions. (Id.). Stokes acknowledged repeatedly that he agreed

with the individual and collective terms of the plea agreement and

3
confirmed that he wanted to plead guilty under the agreement. (Id.

at 10-40).

The Court informed Stokes that for the count he was pleading

guilty to, “the most that you could get would be ten years in jail,

a fine of up to $250,000 or a combination of both of those, up to

three years of supervised release, full forfeiture and a $100

special assessment,” and Stokes answered that he understood. (Id.

at 15). Additionally, the Court advised Stokes that the least he

could get would be probation, no fine, and no supervised release, 

no forfeiture but that he would still have the $100 special

assessment. (Id.). Stokes again indicated that he understood.

(Id.). The Court also confirmed that Stokes understood that the

Court would ultimately decide his sentence and that neither the

Government’s recommendations nor the Guidelines were binding. (Id.

at 15-18). 

During the hearing, this Court questioned Stokes extensively

about his voluntary waiver of his right to appeal, including the

following excerpt from that colloquy:

Q: Let’s go on to subparagraph (f). Mr. Stokes,

that talks about appeals. Do you understand

that in all criminal cases a defendant has a

right to appeal his conviction and/or sentence

in a case? You understand that? 

A: Yes, sir.

Q: In this case you understand, you acknowledge

that I have the jurisdiction and authority to

sentence you up to the maximum provided for by

the statute. Remember you and I talked about

4
that before. That’s the ten years in jail, a

fine of up to $250,000 or a combination of

both of those, up to three years of supervised

release, full forfeiture and a $100 special

assessment. Do you understand that?

A: Yes, sir.

Q: What you’re basically doing in this paragraph,

Mr. Stokes, is you’re giving up all of your

rights to an appeal. For all intents and

purposes, you’re giving them all up. There’s

a few you can’t, like jurisdiction. But for

all intents and purposes, you’re giving them

all up. Do you understand that?

A: Yes, sir. 

Q: So down the road, you don’t like the sentence

I give you, you’re not going to be able to

tell Mr. Soliday, Mr. Soliday, do your thing,

I want you to appeal, because you’re not going

to have a right to appeal that anymore. Do

you understand that? 

A: Yes, sir.

Q: Or if you don’t like some of the rulings that

I make, you may not be able to do those. Do

you understand that?

A: Yes.

Q: That includes incompetence of counsel except

as it relates to the negotiation of this plea

agreement. Do you understand that?

A: Yes, sir.

Q: Understand that the government is not giving

up any of their rights to an appeal? 

A: Yes, sir. 

Q: Are you sure this is what you want to do? 

A: Yes, sir.

5
Q: Did you make this decision knowingly and

voluntarily?

A: Yes, sir.

Q: Did you talk to your attorney before making

this decision?

A: Yes, I did.

Q: Did he answer all of your questions?

A: Yes, he did.

Q: Do you have any questions of the Court?

A: No, sir.

Q: Are you asking me to approve it as part of

your plea agreement?

A: Yes, sir.

Q: And you understand that once the Court accepts

this you’re not going to be able to change

your mind?

A: Yes, sir.

Q: You still want me to go ahead and accept it?

A: Yes sir.

(Id. at 24-26).

Stokes was asked whether “anyone, including [his] own lawyer,

any lawyer for the government, any government agent or anyone else

made any other or different promise or assurance to [him] of any

kind in an effort to induce or cause [him] to enter a plea of

guilty in this case?” (Id. at 28). Stokes indicated that they had

not. (Id.). He further indicated that his willingness to plead

guilty resulted from prior discussions with both his lawyer and the

6
Government’s lawyer, and that noone attempted to force him to plead

guilty. (Id.).

On September 4, 2014, this Court sentenced Stokes to

imprisonment for 87 months. (DE # 52). Stokes did not file a

direct appeal. 

Stokes filed the instant motion under section 2255 on June 2,

2015, arguing that his counsel was ineffective by “failing to

inform Stokes of the Statutory Mandatory Minimum Sentence Under 18

U.S.C. Section 922(g)(1) Causing Him to Enter an Involuntary and

Unknowing Plea” thus depriving him of his Sixth Amendment right to

effective assistance of counsel. (DE #61 at 4). More specifically,

he alleges that:

In January of year 2014, I had a discussion

with Mr. Soilday [sic] about whether I should

plead guilty to the criminal charges contained

in the indictment against me in Cause No.

2:13-CR-148, or whether I should take my case

to trial. Mr. Soilday [sic] told me that it

would be in my best interest to plead guilty

because if I went to trial and was convicted,

I would get a whole lot of time in federal

prison.

* * *

However, during our conversation, Mr. Soilday

[sic] did not inform me of the statutory

mandatory minimum penalty for the 18 U.S.C. §

922(g)(1) charged offense in Count 2 of the

indictment. He only advised me of the maximum

penalty for Count 2 when negotiating my plea

agreement. If I had known that the charge

offense of Count 2 carried a minimum penalty

of zero years imprisonment, I would have not

pleaded guilty to Count 2 and would have

insisted on going to trial.

7
(DE #63). In response, the Government contends that Stokes’ claim

is waived. (DE #72). This motion is fully briefed and ripe for

adjudication. 

DISCUSSION

Habeas corpus relief under 28 U.S.C. section 2255 is reserved

for “extraordinary situations.” Prewitt v. United States, 83 F.3d

812, 816 (7th Cir. 1996). In order to proceed on a habeas corpus

motion pursuant to 28 U.S.C. section 2255, a federal prisoner must

show that the district court sentenced him in violation of the

Constitution or laws of the United States, or that the sentence was

in excess of the maximum authorized by law, or is otherwise subject

to collateral attack. Id. 

A section 2255 motion is neither a substitute for nor

recapitulation of a direct appeal. Id.; Belford v. United States,

975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by

Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). As a

result:

[T]here are three types of issues that a

section 2255 motion cannot raise: (1) issues

that were raised on direct appeal, absent a

showing of changed circumstances; (2)

nonconstitutional issues that could have been

but were not raised on direct appeal; and (3)

constitutional issues that were not raised on

direct appeal, unless the section 2255

petitioner demonstrates cause for the

procedural default as well as actual prejudice

from the failure to appeal.

8
Belford, 975 F.2d at 313. Additionally, aside from demonstrating

“cause” and “prejudice” from the failure to raise constitutional

errors on direct appeal, a section 2255 petitioner may

alternatively pursue such errors after demonstrating 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). 

In assessing Stokes’ motion, the Court is mindful of the wellsettled principle that, when interpreting a pro se petitioner’s

complaint or section 2255 motion, district courts have a “special

responsibility” to construe such pleadings liberally. Donald v.

Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996);

Estelle v. Gamble, 429 U.S. 97, 106 (1976) (a “pro se complaint,

‘however inartfully pleaded’ must be held to ‘less stringent

standards than formal pleadings drafted by lawyers’”) (quoting

Haines v. Kerner, 404 U.S. 519 (1972)); Brown v. Roe, 279 F.3d 742,

746 (9th Cir. 2002) (“pro se habeas petitioners are to be afforded

‘the benefit of any doubt’”) (quoting Bretz v. Kelman, 773 F.2d

1026, 1027 n.1 (9th Cir. 1985)). In other words:

The mandated liberal construction afforded to

pro se pleadings “means that if the court can

reasonably read the pleadings to state a valid

claim on which the [petitioner] could prevail,

it should do so despite the [petitioner's]

failure to cite proper legal authority, his

confusion of various legal theories, his poor

syntax and sentence construction, or his

unfamiliarity with pleading requirements.”

9
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (habeas

petition from state court conviction) (alterations in original)

(quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). 

On the other hand, “a district court should not ‘assume the role of

advocate for the pro se litigant’ and may ‘not rewrite a petition

to include claims that were never presented.’” Id. Here, the

Court assessed Stokes’ claims with these guidelines in mind.

Waiver

Stokes claims that his counsel was ineffective in that he

failed to provide him with information regarding the statutory

mandatory minimum under 18 U.S.C. § 922(g)(1), and as a result, his

decision to plead guilty to that count was not knowingly and

voluntarily made. The Seventh Circuit has recognized the validity

of plea agreement waivers and will enforce the waiver unless there

is a claim that the waiver was entered into involuntarily or that

the waiver was a result of the ineffective assistance of counsel

during the negotiation of the plea waiver. In Jones v. United

States, 167 F.3d 1142, 1145 (7th Cir. 1999). In Mason v. United

States, 211 F.3d 1065, 1069 (7th Cir. 2000), the Seventh Circuit

applied its holding in Jones to bar an ineffective assistance of

counsel claim that related only to the petitioner’s performance

with respect to sentencing. The Court found that “[b]ecause the

challenge has nothing to do with the issue of a deficient

10
negotiation of the waiver, [petitioner] has waived his right to

seek post-conviction relief.” Id. Additionally, the Court stated

that the following analysis should be considered in determining

whether a claim has been waived:

can the petitioner establish that the waiver

was not knowingly or voluntarily made, and/or

can he demonstrate ineffective assistance of

counsel with respect to the negotiation of the

waiver?

Id.

Here, the language used in the waiver provision of the plea

agreement is slightly broader that the language at issue in Jones

or Mason. Stokes waived his right to appeal or contest his

conviction and sentence “to any Court on any ground, including any

claim of ineffective assistance of counsel unless the claimed

ineffective assistance of counsel relates directly to the

negotiation of this plea agreement, including any appeal under . .

. Title 28, United States Code, Section 2255[.]” (DE #18, ¶7(f)).1

Based on the record before this Court, the Court is satisfied that

Stokes knowingly and intelligently waived his right to seek postconviction relief, except where alleging his counsel was

ineffective in negotiation of the plea agreement. See, e.g.,

United States v. Davis, 348 F. Supp. 2d 964, 966 (N.D. Ind. 2004)

1

 Unfortunately, the Government’s response brief inaccurately quotes the

language of the plea waiver, relying on language more similar to that in Jones

and Mason than the language at issue here. Because the Government fails to

rely on the precise language found in Stokes’ plea agreement, the response

brief is of little assistance to the Court. 

11
(finding, under a similar section 2255 waiver, that defendant

knowingly and intelligently waived his right to file a section 2255

motion). As set forth by the Court earlier in this opinion, Stokes

repeatedly testified during his hearing that he was satisfied with

his counsel’s performance, that he was knowingly and voluntarily

pleading guilty, and that he understood the charges against him and

the possible sentence he was facing. To the extent that Stokes 

now argues to the contrary, “[s]elf-serving statements offered

after the plea hearing generally fall in the face of contradictory

voluntary statements made by the defendant during a plea hearing -

the latter are presumed to be true.” United States v. Mosley, No. 

93-1829, 1994 WL 503016, at *3 (7th Cir. Sept. 14, 1994) (citing,

inter alia, United States v. Scott, 929 F.2d 313, 315 (7th Cir.

1991) (“To allow [defendant] to withdraw his plea because of secret

expectations that he harbored in the face of his directly

contradictory sworn testimony would undermine the strong societal

interest in the finality of guilty pleas.”)). As such, the Court

is satisfied that he knowingly and intelligently entered into the

plea agreement

Stokes acknowledges the waiver, but argues that, due to a

change in Department of Justice Policy, the Government should

decline to enforce the waiver provision. See Office of the Deputy

Atty Gen., Memorandum to all Federal Prosecutors: Dep’t Policy on

Waivers of Claims of Ineffective Assistance of Counsel (Oct. 14,

12
2014)available at http://www.justice.gov/sites/default/files/pressreleases/attachments/2014/10/15/dept-policy-on-waivers-of-claimsof-ineffective-assistance-of-counsel.pdf (last visited Apr. 24,

2017). The DOJ’s change in policy, however, did not alter the law,

and in the Seventh Circuit, waivers such as this one remain

enforceable. See U.S. v. Roach, 600 Fed.Appx. 472 (7th Cir.

2015)(“And for existing waivers that would bar a claim of

ineffective assistance, the Attorney General has simply directed

that the government should decline to enforce the waiver to block

that claim.”); United States v. Oziolisa, Nos. 3:10-cr-39, 3:11-cv236, 2015 WL 686416, at *3 (S.D. Ohio 2015)(“The Deputy Attorney

General’s Memorandum embodies a change in Department of Justice

policy, not a change in the law that renders prior waivers of

collateral attack invalid.”). 

Having determined that the waiver is enforceable, this Court

must consider whether Stokes’ claim falls within the waiver. Here,

Stokes argues that his counsel was ineffective in that he failed to

advise him of a mandatory minimum sentence and that, had he known

that minimum, he would have went to trial. At least arguably, this

claim relates to the negotiation of the plea agreement and

therefore falls outside the waiver. Neither party appreciated the

difference in the language between Stokes’ plea waiver and those at

issue in Jones and Mason, and so this decision is not based on

well-developed arguments of the parties. In the absence of such

13
arguments, this Court opts to error on the side of caution, and

address Stokes’ claim on the merits. Ultimately, it is of no

consequence, however, as the claim fails on the merits.

Stokes’ Claim Fails on the Merits

Claims of ineffective assistance of counsel are governed by

the 2-pronged test set forth in Strickland v. Washington, 466 U.S.

668 (1984). To prevail on an ineffective assistance of counsel

claim, the petitioner must first show the specific acts or

omissions of his attorney “fell below an objective standard of

reasonableness” and were “outside the wide range of professionally

competent assistance.” Barker v. United States, 7 F.3d 629, 633

(7th Cir. 1993) (quoting Strickland, 466 U.S. at 688, 690); see

also Hardamon v. United States, 319 F.3d 943, 948 (7th Cir. 2003);

Anderson v. Sternes, 243 F.3d 1049, 1057 (7th Cir. 2001). The

second Strickland prong requires a petitioner to show prejudice,

which entails showing by “a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. Regarding the

deficient-performance prong, great deference is given to counsel's

performance, and the defendant has a heavy burden to overcome the

strong presumption of effective performance. Strickland, 466 U.S.

at 690; Coleman v. United States, 318 F.3d 754, 758 (7th Cir. 2003)

(citation omitted). A defendant must establish specific acts or

14
admissions that fall below professional norms. Strickland, 466

U.S. at 690. If one prong is not satisfied, it is unnecessary to

reach the merits of the second prong. Id. at 697. 

The Seventh Circuit has held that “[o]nly those habeas

petitioners who can prove under Strickland that they have been

denied a fair trial by the gross incompetence of their attorneys

will be granted the writ.” Canaan v. McBride, 395 F.3d 376, 385-86

(7th Cir. 2005). Additionally, trial counsel “is entitled to a

‘strong presumption’ that his performance fell ‘within the range of

reasonable professional assistance’ and will not be judged with the

benefit of hindsight.’” Almonacid v. United States, 476 F.3d 518,

521 (7th Cir. 2007) (citing Strickland, 466 U.S. at 689).

Stokes argues that, if he had known the mandatory minimum for

the offense to which he pled guilty, he would have opted to go to

trial. The mandatory minimum Stokes references is, in this

instance, zero months of imprisonment. In other words, there is no

mandatory minimum sentence. Furthermore, Stokes testified that he

talked with his attorney about his possible sentence. (DE #73 at

11, 19, 28, 30). And, even if he had not, this Court advised

Stokes that the minimum in his case was probation, no fine, no

supervised release, no forfeiture, but a $100 special assessment.

(Id. at 15). Thus, at least at the time of the change of plea

hearing, Stokes was well-aware that there was no mandatory minimum

period of incarceration for Count 2. 

15
Furthermore, Stokes has not shown he was prejudiced by this

alleged failure on the part of his counsel. Stokes offers no

explanation how knowing this would have impacted his plea decision. 

One can understand how pleading without knowing the mandatory

minimum and later learning that you are subject to a mandatory

minimum period of incarceration could be prejudicial, but how is a

defendant prejudiced by counsel’s failure to advise him that there

is no mandatory minimum period of incarceration? His counsel did

not mislead him into believing that he was subject to a mandatory

minimum term of incarceration which was not in actuality correct. 

In his memorandum but not his affidavit, Stokes claims that

“[a]t no time did Soilday [sic] advise him of any applicable

guideline sentencing range for Count 2 when negotiating his plea

agreement...” (DE #62 at 4). First, this too is contradicted by

the defendant himself in the plea colloquy. (DE #73 at 19).

Furthermore, a guideline computation often cannot be made with any

certainty in advance of the preparation of the pre-sentencing

investigation report, after the change of plea hearing. Effective

assistance of counsel does not require that counsel correctly

predict a defendant’s guideline range. In the plea bargaining

context, a defendant must show that counsel did not attempt to

learn the facts of the case and failed to make a good-faith

estimate of a likely sentence. United States v. Cieslowski, 410

F.3d 353, 359 (7th Cir. 2005); United States v. Martinez, 169 F.3d

16
1049, 1053 (7th Cir. 1999). 

Unquestionably, Stokes knew what sentence he was potentially

facing. He was advised of the possible penalties he was facing at

his initial appearance on December 6, 2013 (DE #3). The plea

agreement itself set forth Stokes’ possible penalties. (DE #18 at 

¶7(b)). The Court advised Stokes of the possible penalties in

detail at the change of plea hearing, including the fact that this

Court was not bound by the parties’ recommendations and that he

could receive a sentence up to the statutory maximum of 10 years. 

(DE #73 at 15-26). At the change of plea hearing, he also

indicated that he had fully discussed the charges made against him

with his attorney, and that he was fully satisfied with his

attorney. (DE #73 at 9-10. Furthermore, he indicated that noone,

including his lawyer, had “made any other or different promise or

assurance to [him] of any kind in an effort to induce or cause

[him] to enter a plea of guilty in this case.” (Id. at 28). 

Stokes has not claimed that he lied at the change of plea hearing,

but even if he were making such a claim it would fail. A

defendant’s statements given under oath during a plea colloquy are

presumed to be true. United States v. Redmond, 667 F.3d 863, 870

(7th Cir. 2012). 

Stokes has not demonstrated that his counsel’s alleged

omissions fell below an objective standard of reasonableness or

that he was prejudiced by his counsel’s alleged failures. His

17
claims therefore fail on the merits. 

Certificate of Appealability

Pursuant to Rule 11 of the Rules Governing Section 2255

Proceedings, a district court must “issue or deny a certificate of

appealability when it enters a final order adverse to the

applicant.” A certificate of appealability may issue only if the

applicant “has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a

showing, a defendant must show that “reasonable jurists could

debate whether (or, for that matter, agree that) the motion should

have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks and citation omitted). 

For the reasons set forth above, Stokes has not stated any

grounds for relief under section 2255. The Court finds no basis

for a determination that reasonable jurists would find this

decision debatable or incorrect or that the issues deserve

encouragement to proceed further. Therefore, a certificate of

appealability will not be issued. 

18
CONCLUSION

For the aforementioned reasons, Stokes’ section 2255 motion is

DENIED without a hearing. The Clerk is ORDERED to DISMISS this

case WITH PREJUDICE. The Clerk is ORDERED to distribute a copy of

this order to Mario Stokes, #18521-027, Elkton FCI, Federal

Correctional Institution, Inmate Mail/Parcels, P.O. Box 10, Lisbon,

OH 44432, or to such other more current address that may be on file

for the Defendant. Further, this Court declines to issue Defendant

a certificate of appealability.

DATED: April 24, 2017 /s/ RUDY LOZANO, Judge

United States District Court

19