UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JOSE MARTINEZ, )

)

Petitioner )

)

vs. ) CAUSE NO. 3:14-CV-1858 RLM 

) (Arising out of 3:13-CR-44 RLM) 

UNITED STATES OF AMERICA, )

)

Respondent )

OPINION and ORDER

Jose Martinez pleaded guilty to possession of over 500 grams of cocaine

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and was sentenced

in September 2013 to a term of 60 months’ imprisonment, with four years of

supervised release to follow. Although Mr. Martinez expressly waived the right to

appeal or contest his conviction and sentence in his plea agreement, he filed a

“notice of appeal” on August 27, 2014, in which he expressed a desire to petition

for a writ of habeas corpus and requested an application for a writ under 28

U.S.C. § 2255. The court sent Mr. Martinez the form requested and gave him until

October 5, 2014 to file an amended petition for habeas relief on the form provided,

withdraw his request for habeas relief, or inform the court that his intent was to

proceed with a direct appeal. Mr. Martinez sought and received an extension of

time to respond and was repeatedly warned that the court would treat his notice

of appeal as a petition for habeas relief under § 2255 and proceed accordingly, if
he failed to comply with the court’s order. Mr. Martinez hasn’t complied or

provided any reason for failing to do so. 

Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United

States District Courts provides that once a motion is filed:

If it plainly appears from the motion, any attached exhibits, and the

record of prior proceedings that the moving party is not entitled to

relief, the judge must dismiss the motion and direct the clerk to notify

the moving party.

The motion and record in this case presents no basis for granting the relief Mr.

Martinez appears to be seeking.

Mr. Martinez’s plea agreement reveals that he waived his right to appeal and

to contest his conviction and sentence in a § 2255 proceeding. Mr. Martinez, his

attorney Brian May, and Assistant United States Attorney Frank Schaffer signed

the plea agreement, which contained the following language in paragraph 9(e):

I understand that the law gives a convicted person the right to

appeal the conviction and the sentence imposed; I also understnad

that no one can predict the precise sentence that will be imposed,

and that the Court has jurisdiction and authority to impose any

sentence withing the statutory maximum set for my offense(s) 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 and 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 this waiver or its negotiation,

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[.]

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(Emphasis original). 

In paragraphs 11 and 12, Mr. Martinez stated that he believed his attorney

“ha[d] done all that anyone could do to counsel and assist [him],” that he offered

his plea “freely and voluntarily and of [his] own accord, and no promises ha[d]

been made to [him] other than those contained in [the plea agreement], nor ha[d]

[he] been threatened in any way by anyone to cause [him] to plead guilty.”

Despite the waivers and admissions in his plea agreement, Mr. Martinez is

now before the court seeking post-conviction relief under 28 U.S.C. § 2255. A plea

agreement containing a waiver of the right to appeal and to file a petition under

§ 2255 can be collaterally attacked in a limited number of circumstances,

including challenges based upon contractual grounds such as mutual mistake or

breach, United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005); when a

defendant claims the waiver was involuntary or counsel was ineffective in

negotiating the agreement, Mason v. United States, 211 F.3d 1065, 1069 (7th Cir.

2000); or when the sentence is greater than the statutory maximum sentence for

the offense of conviction. United States v. Bownes, 405 F.3d 634, 637 (7th Cir.

2005). Mr. Martinez hasn’t made any of those arguments, didn’t receive a sentence

greater than the statutory maximum, and hasn’t shown that his guilty plea was

anything other than “a voluntary and intelligent choice among the alternate

courses of actions open to him.” Berkey v. United States, 318 F.3d 768, 773 (7th

Cir. 2003) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). 

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Because Mr. Martinez’s plea was informed and voluntary, the waiver of his

right to appeal and to file a § 2255 petition “must be enforced.” Nunez v. United

States, 546 F.3d 450, 453 (7th Cir. 2008). Accordingly, Mr. Martinez’s motion for

relief from his conviction and sentence under 28 U.S.C. § 2255 [Doc. No. 44] is

DISMISSED. 

SO ORDERED.

ENTERED: October 31, 2014 

 /s/ Robert L. Miller, Jr. 

Judge, United States District Court

cc: J. Martinez

AUSA Schaffer

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