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-79

) (2:14-CV-176) 

JON ERIK LILLY, )

)

Defendant/Petitioner. )

OPINION AND ORDER

This matter is before the Court on: (1) the “Motion to Vacate

and Set-A-Side or Correct A Sentence Under 28 Section 2255 and

Under 18 Section 3553,” filed by Jon Erik Lilly on May 27, 2014 (DE

#30); and (2) the “Movant’s Motion to Strike Respondent’s SurReply,” filed by Jon Erik Lilly on October 2, 2014 (DE #38). For

the reasons set forth below, the motion to strike is GRANTED and

the section 2255 motion is DENIED. Further, this Court declines to

issue Defendant a certificate of appealability. The Clerk is

FURTHER ORDERED to distribute a copy of this order to Jon Erik

Lilly, #12722-027, Forrest City FCI - 9000 - Low, Federal

Correctional Institution, Inmate Mail/Parcels, P.O. Box 9000,

Forrest City, AZ 72336, or to such other more current address that

may be on file for Lilly. 
BACKGROUND

On June 11, 2013, a two-count Information was filed against

Defendant, Jon Erik Lilly (“Lilly”). Lilly was charged with two

counts of receipt of child pornography, in violation of 18 U.S.C.

section 2252(a)(2). (DE #1). The information was filed together

with a signed plea agreement calling for a binding sentence of 144

months, pursuant to Rule 11(c)(1)(c). (DE #2). This Court,

however, will not accept a plea agreement with a binding term of

imprisonment. Accordingly, the plea agreement was amended to

reflect that the parties agreed that a sentence of 144 months was

appropriate in this case, but this Court was not bound by their

agreement. (DE #7). 

The plea agreement also contained the following wavier:

I understand that the law gives a convicted

person the right to appeal the conviction and

sentence (including any restitution) 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 offenses 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 or

the sentence imposed, including 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, Unites

States Code, Section 3742 or any postconviction proceeding, including but not

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limited to, a proceeding under Title 28,

Unites States Code, Section 2255. 

(DE #7, ¶ 7(e)).

Further, Defendant 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.” (DE #7, ¶¶ 10-11). 

This Court held a change of plea hearing on June 18, 2013. 

(DE ##10, 32). When asked whether he was “fully satisfied with the

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

Mr. Sanchez as [his] attorney,” Lilly replied “yes.” (DE #32 p.

8). After Lilly 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. Lilly

answered in the affirmative to each of these questions. (DE #32.,

p. 11). Lilly acknowledged repeatedly that he agreed with the

individual and collective terms of the plea agreement and confirmed

that he wanted to plead guilty under the agreement. (DE #32, pp.

11-48). 

The Court informed Lilly that, for each count he was pleading

guilty to, he was facing “up to 20 years in jail, up to life

supervised release, a $250,000 fine or a combination of both jail

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time and fine time [sic], full restitution, full forfeiture and a

$100 special assessment,” and Defendant answered that he

understood. (DE #32, pp. 15-16). Additionally, the Court advised

Lilly that “[t]he least you could get would be five years in jail,

no fine, five years of supervised release, no forfeiture, but you

still would have full restitution and a $100 special assessment,”

and Lilly indicated that he understood. (DE #32, p. 16).

The Court also confirmed that Lilly understood that the Court

would ultimately decide Lilly’s sentence and that neither the

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

#32, pp. 21-31). This included clear notification that the

Government’s recommendation that Lilly be sentenced to a term of

imprisonment of 144 months was not binding on the Court. (DE #32,

pp. 18-21). The following exchange occurred:

Q: Second nonbinding recommendation, the

government and you agree to recommend to the

Court that your sentence in this case should

be a sentence of 144 months, and you feel that

to be fair and reasonable for all of the facts

of the case and also for the different factors

that are under Title 18, United States Code,

Section 3553(a). Do you understand that?

A: Yes, I do.

Q: Who makes the final decision as to what

your sentence may be? 

A: You do, Your Honor.

Q: And you understand that I may agree with

you and I may not?

A: Yes, I do.

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Q: In fact, the reason that the – your

attorney alluded to it, that the other

plea agreement was not accepted, is

because I will not allow a plea agreement

that dictates what your sentence is going

to be. That’s my discretion. Do you

understand that?

A: Yes, Your Honor. 

Q: Are you in agreement with that?

A: I am.

Q: Okay. And you understand that I may agree with you

and I may not?

A: Yes.

(DE #32, pp. 23-24).

During the hearing, this Court questioned Lilly extensively

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

following excerpts from that colloquy:

Q: Let’s go on to subparagraph (c). Mr. Lilly,

that deals with appeals. Do you understand

that in all criminal cases a defendant has a

right to appeal his conviction and/or sentence

in a case?

A: Yes, Your Honor.

Q: In this case you have agreed that I have the

jurisdiction and authority to sentence you up

to the maximum provided for by the statute.

You remember you and I talked about that?

That’s 20 years in jail, a fine of up to

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

to life supervised release, full restitution

and a $100 special assessment on each of

Counts One and Two of the information?

A: Yes, Your Honor.

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

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

rights to an appeal, either the manner in

which you were found guilty or any sentence

that you may receive. Do you understand that?

A: Yes, Your Honor.

Q: That includes incompetence of counsel except

as it relates to this waiver and/or its

negotiation. Do you understand that?

A: Yes, Your Honor.

Q: Do you understand that the government is not

giving up their rights to an appeal?

A: Yes, Your Honor.

Q: Down the road, if you don’t like the sentence

that I gave you, you feel that I gave you a

sentence that was too harsh or you don’t like

some of my rulings, you’re not going to be

able to go back to Mr. Sanchez and say, Mr.

Sanchez, I want to appeal, because for all

practical purposes, you’ve given up all of

your rights to an appeal. Do you understand

that?

A: Yes, Your Honor.

Q: There’s some you can’t give up, like

jurisdiction. But for all practical purposes,

you’re giving them all up. Do you understand

that?

A: Yes, Your Honor.

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

A: Yes.

Q: Did you talk to your attorney about it before

making this decision?

A: Yes.

Q: Did he answer all of your questions?

A: Yes.

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Q: Are you doing it knowingly and voluntarily?

A: I am.

Q: And are you asking me to approve it as part of your

plea agreement?

A: I am. 

(DE #32, pp. 26-28).

On September 26, 2013, the Court sentenced Lilly to a term of

imprisonment of 144 months. (DE #26). Judgment was entered on

October 1, 2013. (DE #27). On March 5, 2014, Lilly sought leave

to file an untimely notice of appeal. (DE #28). His motion was

denied, but this Court noted that the denial would not prevent him

from filing a timely section 2255 petition. (DE #29).

Lilly filed the instant motion under section 2255 on May 27,

2014, setting forth several arguments. He claims that his plea was

not made knowingly and voluntarily because his counsel was

ineffective in that he failed to do a reasonable investigation into

the facts and the law and to develop a defense. In fact, Lilly now

claims that, despite his admissions at the change of plea hearing,

he is innocent because the pictures he possessed do not constitute

child pornography within the meaningly of the law. Lilly also

claims that his counsel was ineffective at sentencing by failing to

seek mitigating factors (such as the sexual maturity of the victim

and the fact that she took and distributed the photographs herself)

and failing to do any research regarding sentences in similar

cases, leading to a sentencing disparity. Lilly further claims

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that his counsel led him to believe he could participate in Bureau

of Prisons (“BOP”) programs that would make him eligible for a

camp, but that was not true - he is not eligible. He further

claims that he asked his counsel to file an appeal but his counsel

refused. 

This Government filed a response brief and Lilly filed a reply

brief. The Government also filed a sur-reply. Lilly has moved to

strike that reply because the Government failed to obtain leave of

court to file the sur-reply. (DE #38). Both the 2255 motion and

the motion to strike are 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:

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[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.

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 Lilly's 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:

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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."

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 Lilly’s claims with these guidelines in mind.

Motion to Strike

Lilly argues that the rules do not allow for a sur-reply and

that, at a minimum, the Government should have sought leave of

court prior to filing its sur-reply. Lilly is correct. Rule 5(c)

of the rules governing section 2255 proceedings makes provision for

a response when a judge so orders, and a reply to any response

within a time fixed by the judge. Because the Government did not

seek leave to file a sur-reply, the motion to strike is GRANTED. 

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Each of Lilly’s Claims are Waived

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 waiver. In Jones v. United States, 167 F.3d

1142, 1145 (7th Cir. 1999), the Seventh Circuit held that only two

claims could be raised on a section 2255 motion by an individual

who waived his right to appeal: (1) the defendant received

ineffective assistance of counsel in negotiating the waiver; or (2)

that the waiver was not knowingly and voluntarily made. Jones

stated that courts should be:

[m]indful of the limited reach of this

holding, we reiterate that 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. at 1145. 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 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:

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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.

It is undisputed that in his plea agreement, Lilly 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 this waiver or its negotiation, including any

appeal under . . . Title 28, United States Code, Section 2255.” 

(DE #7, ¶ 7(e)). 

This Court is satisfied that Lilly knowingly and intelligently

waived his right to seek post-conviction relief. See, e.g., United

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

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

knowingly and intelligently waived his right to file a section 2255

motion). To the extent that Lilly 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

12
undermine the strong societal interest in the finality of guilty

pleas.”)). As set forth by the Court earlier in this opinion,

Lilly 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. As such, the

Court is satisfied that he knowingly and intelligently entered into

the plea agreement.

Furthermore, none of Lilly’s claims of ineffective assistance

relate directly to the waiver or its negotiation. He claims that

his counsel did not investigate the facts or the law adequately. 

Additionally, if his counsel had investigated the facts and the law

adequately, counsel would have discovered that Lilly was innocent

because the pictures did not constitute child pornography. He

further claims that, even if guilty, an investigation by his

attorney would have revealed that an appropriate sentence for the

alleged offense is much smaller than that called for by the plea

agreement. He complains of his counsel’s failure to make certain

arguments at sentencing. And, he complains that he is not eligible

for certain BOP programs that his counsel led him to believe he

could participate in. Finally, he complains that his counsel did

not file an appeal on his behalf even after he requested that the

13
appeal be filed.1 None of these arguments relate directly to the

waiver or its negotiation. 

Although a showing of actual innocence could overcome the

waiver provision, Lilly has not made a colorable showing that “in

light of all the evidence, it is more likely than not that no

reasonable juror would have convicted him.” See Bousley v. United

States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S.

298, 327-28 (1995)); see also Murray v. Carrier, 477 U.S. 478, 496

(1986) (requiring a post-conviction petitioner to show that “a

constitutional violation has probably resulted in the conviction of

one who is actually innocent.”). Lilly argues that the images at

issue did not constitute pornography, but this is directly contrary

to his testimony at the change of plea hearing, where he conceded

that the images were pornographic and involved sexually explicit

conduct. (DE #32 at 41-42, 44-47). Moreover, the descriptions of

the images found in the presentence investigation report leave

little doubt that a reasonable juror could indeed find the images

constitute “sexually explicit conduct,” as defined in 18 U.S.C. §

2256(2)(A)(v). (DE #20, pp. 9-10, describing a close-up image of

Jane Doe 1's vagina, an image where Jane Doe 1 is nude and holding

1

 While many circuits have found that a waiver provision does not

prevent a claim of ineffective assistance based on failure to file an appeal,

the Court of Appeals for the Seventh Circuit has found such claims waivable. 

See Nunez v. United States, 546 F.3d 450 (7th Cir. 2008)(“Instead of being

obliged to follow his client’s (latest) wishes, however unreasonable they may

be, a lawyer has a duty to the judiciary to avoid frivolous litigation-and an

appeal in the teeth of a valid waiver is frivolous.”); see also Dowell v.

United States, 694 F.3d 898 (7th Cir. 2012).

14
a dildo above her vagina, and an image of Jane Doe 4 nude in front

of a mirror showing her breasts and vagina). Lilly has not claimed

that the descriptions of the images found in the presentence

investigation report are inaccurate. Accordingly, each and every

one of Lilly’s arguments are waived. 

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, Lilly 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. 

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CONCLUSION

For the aforementioned reasons, For the reasons set forth

below, the motion to strike is GRANTED and the section 2255 motion

is DENIED. Further, this Court declines to issue Defendant a

certificate of appealability. The Clerk is FURTHER ORDERED to

distribute a copy of this order to Jon Erik Lilly, #12722-027,

Forrest City FCI - 9000 - Low, Federal Correctional Institution,

Inmate Mail/Parcels, P.O. Box 9000, Forrest City, AZ 72336, or to

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

Petitioner. 

DATED: February 26, 2016 /s/ RUDY LOZANO, Judge

United States District Court

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