1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

RAPHAEL SEAY, ) 

 ) 

Petitioner, ) 

 ) 

 vs. ) CAUSE NO. 3:15-CR-090 RLM 

 ) (Arising out of: 3:17-CV-00678) 

UNITED STATES OF AMERICA, ) 

 ) 

Respondent. ) 

OPINION AND ORDER 

 Raphael Seay pleaded guilty to being a felon in possession of a firearm, a 

violation of 18 U.S.C. § 922(g)(1). This court sentenced Mr. Seay to a term of 30 

months’ imprisonment and a two-year period of supervised release. As part of 

the plea agreement, Mr. Seay waived his right to appeal his conviction and his 

right to file any post-conviction proceedings under 28 U.S.C. § 2255 with the 

exception of an ineffective assistance of counsel claim. Mr. Seay is now 

requesting that the court vacate his conviction and sentence under 28 U.S.C. § 

2255. [Doc. No. 32] – attacking his conviction by alleging violations of certain 

United States statutes and constitutionally deficient representation. For the 

following reasons, the court denies Mr. Seay’s motion. 

In January 2015 Mr. Seay, a convicted felon who was serving a term of 

supervised release, was arrested and charged with possessing a firearm. The 

State of Indiana charged Mr. Seay with resisting arrest and for violating certain 

provisions of his supervised release. He was sentenced in state court to a 

cumulative three years in imprisonment and remained in state custody. 
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Mr. Seay was indicted in federal court for possessing a firearm after a 

felony conviction. 18 U.S.C. § 922(g)(1). Mr. Seay was taken into federal custody, 

but not until after he finished serving his state time. No federal detainer had 

been placed on Mr. Seay before this. Mr. Seay pleaded guilty and informed the 

court that—as part of the signed plea agreement—he had agreed to waive his 

right, apart from an ineffective assistance of counsel claim, to collaterally attack 

his conviction under 28 U.S.C. § 2255 and his right to an appeal. Mr. Seay said 

he understood the plea agreement and that he knowingly and voluntarily signed 

it in exchange for the government’s recommendation of the maximum 

acceptance-of-responsibility credit available. The court sentenced Mr. Seay to a 

term of imprisonment of 30 months and a two-year period of supervised release. 

Two weeks later, Mr. Seay filed this petition under 28 U.S.C. § 2255. 

Mr. Seay attacks his sentence and conviction by alleging certain statutory 

deficiencies and that his counsel provided ineffective assistance by allowing him 

to take a plea deal when meritorious claims were available to him. The rules 

governing petitions filed under 28 U.S.C. § 2255 provide that once a motion is 

filed: 

The motion, together with all the files, records, transcripts, and 

correspondence relating to the judgment under attack, shall be 

examined promptly by the judge to whom it is assigned. If it plainly 

appears from the face of the motion and any annexed exhibits and 

the prior proceedings in the case that the movant is not entitled to 

relief in the district court, the judge shall make an order for its 

summary dismissal and cause the movant to be notified. 

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

District Courts. After reviewing the record in this case, the court finds that Mr. 
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Seay’s petition can be resolved without a hearing. See Bruce v. United States, 

256 F.3d 592, 597 (7th Cir. 2001); Daniels v. United States, 54 F.3d 290, 293 

(7th Cir. 1995). 

 Mr. Seay can’t present his statutory claims1 unless he establishes 

ineffective assistance of counsel. His written plea agreement expressly waived 

his right to file any post-conviction proceedings on any grounds other than 

ineffective assistance of counsel. 

(e) 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(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 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, other than a claim of 

ineffective assistance of counsel, including any appeal under 

Title 18, United States Code, Section 3742, or any postconviction proceeding, including but not limited to, a 

proceeding under Title 28, United States Code, Section 2255. 

(Doc. No. 19—Filed Plea Agreement) (emphasis in original) 

The waiver of § 2255 rights is enforceable. See United States v. Alcala, 678 

F.3d 574, 577 (7th Cir.2012); Keller v. United States, 657 F.3d 675, 681 (7th 

Cir.2011); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999). The court 

of appeals has held “to bar collateral review, the plea agreement must clearly 

                                                            

1 Mr. Seay alleges violations of 18 U.S.C. § 3161(g), and § 3161(j), which concern a defendant’s 

right to a speedy trial. 
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state that the defendant waives his right to collaterally attack his conviction or 

sentence in addition to waiving his right to a direct appeal.” Keller v. United 

States, 657 F.3d 675, 681 (7th Cir. 2011) (emphasis in original). This waiver is 

enforceable if made knowingly and voluntarily, id., and if not the result of 

ineffective assistance of counsel. Dowell v. United States, 694 F.3d 898, 902 (7th 

Cir. 2012). 

Mr. Seay also argues that his counsel was unconstitutionally ineffective 

because his attorney 1) didn’t raise any issues concerning his delay in state 

custody or advise him of his right to a trial, and 2) didn’t challenge the facts and 

circumstances surrounding his illegal firearm possession. 

Courts traditionally reject broad, unsupported assertions of ineffective 

assistance, see, e.g., Jones v. United States, 167 F.3d at 1145–1146, and “garden 

variety attacks ... raise[d] in the guise of a claim of ineffective assistance of 

counsel.” United States v. Joiner, 183 F.3d 635, 645 (7th Cir.1999). To 

successfully navigate around the waiver of appellate and post-conviction rights, 

Mr. Seay must argue that he entered into the plea agreement based on advice of 

counsel that fell below constitutional standards; that the decision was the 

product of ineffective assistance. Hurlow v. United States, 726 F.3d 958, 966-

967 (7th Cir. 2013); United States v. Cieslowski, 410 F.3d 353, 361–362 (7th Cir. 

2005) (holding that a valid claim must be the sort that “if successful, would result 

in setting aside the plea agreement as a whole.”). 

So Mr. Seay must point to evidence that his counsel made errors “so 

serious that ‘counsel’ was not functioning as the counsel guaranteed the 
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defendant by the Sixth Amendment” and “that counsel’s errors were so serious 

as to deprive [Mr. Seay] of a fair [result].” Strickland v. Washington, 466 U.S. 

668, 687 (1984). Mr. Seay “bears a heavy burden” in proving that his counsel 

was consitutionally ineffective. Barker v. United States, F.3d 629, 633 (7th Cir. 

1993). Courts recognize a strong presumption that counsel performed effectively. 

See Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003). “A court’s 

scrutiny of an attorney’s performance is ‘highly deferential’ to eliminate as much 

as possible the distorting effects of hindsight, and we ‘must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.’ ” Vinyard v. United States, 804 F.3d at 1225 (quoting 

Strickland v. Washington, 466 U.S. at 687). Because reviewing courts should not 

second-guess counsel’s strategic choices, the burden of showing that counsel’s 

decisions fell outside the wide range of reasonable strategic choices “rest[s] 

squarely on the defendant.” Burt v. Titlow, 571 U.S. 12, 22–23 (2013).

“Even if counsel’s performance was deficient, a petitioner must also show 

that ‘there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different,’ meaning ‘a 

probability sufficient to undermine confidence in the outcome.’” Eckstein v. 

Kingston, 460 F.3d 844, 848 (7th Cir. 2006) (quoting Strickland v. Washington, 

466 U.S. at 694). 

The transcripts of Mr. Seay’s initial appearance [Doc. No. 38 pg. 11:2-5], 

his plea hearing [Doc. No. 36 pg. 16:13-21], and the text of the plea agreement 

itself [Doc. No. 19], show that Mr. Seay was adequately advised of, and aware of, 
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his right to have a trial. At his plea hearing, Mr. Seay acknowledged that he was 

satisfied with his counsel’s service, [Doc. No. 36 pg. 5:17-6:1], and that he had 

gone over the plea agreement with his counsel. [Doc. No. 36 pg. 7: 18-19]. 

“The speedy trial protections of the federal statute apply only to arrests 

made for federal charges—an arrest by a state officer on a state charge does not 

start the statutory clock.” United States v. Clark, 754 F.3d 401, 405 (7th Cir. 

2014). Even though he was in custody since 2015, The U.S. Marshals didn’t 

“arrest” Mr. Seay until February 2017. Clark, 754 F.3d at 407 (“The sine qua non

of an arrest for purposes of the Act is the act of unambiguously bringing the 

accused into federal custody.”). Mr. Seay had no right to a hearing on the federal 

gun charge until he was detained in February of 2017. 

The court must look at the reasonableness of the attorney’s decision at the 

time of making such decision. Strickland, 466 U.S. at 690. Considering this, 

counsel’s decision to not contest the delay on constitutional speedy trial grounds 

was entirely reasonable and did not render his assistance ineffective. Salyer v. 

Sternes, 34 F. App'x 238, 240 (7th Cir. 2002) (“Because the [speedy trial] motion 

would have failed, the court concluded that counsel's representation could not 

have been ineffective assistance...”); United States v. Rucker, 142 F.3d 441 (7th 

Cir. 1998) (failure to challenge delay on Speedy Trial grounds did not render 

counsel’s assistance ineffective). 

Even if Mr. Seay could demonstrate that his counsel’s failure to challenge 

the delay of his hearing or advise him on his right to a trial, failed the 

performance prong of Strickland, he can only succeed on this claim if he can 
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also show prejudice. “To establish prejudice, the defendant must show that ‘there 

is a reasonable probability that, but for counsel's unprofessional errors, the 

result of the proceeding would have been different.’ ” United States v. Best, 426 

F.3d 937, 945 (7th Cir. 2005) (quoting Strickland, 466 U.S. at 694). “Here, that 

means [Mr. Seay] must show that . . . there was a ‘reasonable probability’ that 

he would have been acquitted.” United States v. Berg, 714 F.3d 490, 497 (7th 

Cir. 2013) (quoting Rastafari v. Anderson, 278 F.3d 673, 689 (7th Cir. 2002)). 

Mr. Seay has provided no evidence or argument to suggest that he was 

prejudiced by his attorney’s decision not to levy a speedy trial challenge. 

Mr. Seay’s similarly can’t succeed on his firearms claim. To prove Mr. Seay 

was guilty of felony possession, the government had to prove that he possessed 

a firearm; that prior to his possession of this firearm, he had been convicted of 

a crime that had potential punishment of more than a year in prison; and, lastly, 

that the firearm had moved in interstate or foreign commerce in some manner. 

See 18 U.S.C. § 922(g)(1). It is undisputed that Mr. Seay was a prior convicted 

felon and that the type of gun he possessed had traveled in foreign commerce. 

[Doc. No. 36 pg. 13: 15-19]. Lastly, as to possession, Mr. Seay was found with 

the gun in his waistband. See United States v. Markovitch, 442 F.3d 1029, 1030–

1031 (7th Cir. 2006) (gun found in waistband constituted possession). His 

attorney, weighing this evidence, acted reasonably in not challenging the firearm 

charge. Strickland v. Washington, 466 U.S. at 690. The evidence doesn’t raise a 

reasonable probability of an acquittal had Mr. Seay’s challenged this charge. 

United States v. Berg, 714 F.3d at 497. Mr. Seay, a prior felon, was found with 
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the firearm in his waistband. His claim fails both prongs of the ineffective 

assistance standard, the court denies his claim. Strickland v. Washington, 466 

U.S. at 687. 

Based on the foregoing, the court DENIES the motion to vacate [Doc. No. 

32]. 

SO ORDERED. 

ENTERED: June 26, 2019 

 /s/ Robert L. Miller, Jr. 

 Judge, United States District Court