period of limitation” that runs from the latest of four specified events: (1) “the date on
which the judgment of conviction becomes final;” (2) “the date on which the
impediment to making a motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the movant was prevented from
making a motion by such governmental action;” (3) “the date on which the right
asserted was initially recognized by the Supreme Court and made retroactively
applicable to cases on collateral review;” or (4) “the date on which the facts supporting
the claim or claims presented could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2255. Under the “mailbox rule” pro se habeas petitions filed
by prisoners are deemed filed when the petition is given to the proper prison authorities
for mailing. Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999).

Chavez’s conviction became final on October 9, 2002, when we sentenced him
and entered judgement in his case. Under 28 U.S.C, § 2255's one-year statute of
limitations, Chavez had until October 9, 2003, to file his petition. Even though the
Certificate of Service that Chavez filled out and attached to his petition was dated
October 9, 2003, it does not appear that he actually delivered his petition to the proper
authorities that day. We reach this conclusion because the envelope in which Chavez's

petition arrived was stamped by the FCI Lompoc mail department on October 31,



declared under oath that he had read the whole plea agreement, discussed it with his
attorney, understood it in his entirety, and was pleading under his own free will.
Chavez also stated that he was satisfied with the representation of his attorneys. We
determined that Chavez’s declarations and plea were truthful and made in a knowing,
intelligent, and voluntary manner. Chavez’s current argument that he did not know
that he was signing a plea agreement is simply not believable.

Chavez’s petition essentially argues that had he known he would receive his
current sentence, which is longer than that of his co-defendants, he would not have
entered the plea agreement. This does not change the fact that he swore under oath that
all of the government’s allegations contained therein were true, that he understood the
plea in its entirety, and that he was satisfied with his attorneys’ performance. We will
not allow Chavez to back out of his agreement by finding that his attorneys
ineffectively negotiated the plea agreement because Chavez did not meet their fees
demands. Even if we were to accept the proposition that Meczyk’s failure to file pre-
trial motions directly impacted the Chavez’s waiver of collateral attack rights, which
we do not, we do not find that this omission was so glaring as to meet the
Strickland standard. Regardless of the propriety of the advice by Meczyk and his
associates prior to Chavez’s plea, it resulted in him avoiding a much greater sentence

that was a very real possibility had Chavez rejected the government’s agreement and

9.



12. The defendant is also aware that 18 U.S.C. § 3742 affords a
defendant the right to appeal the sentence imposed. Acknowledging this,
the defendant knowingly waives the right to appeal any sentence within
the maximum provided in the statute of conviction (or the manner in
which the sentence was determined), in exchange for the concessions
made by the United States in this Plea Agreement. The defendant also
waives his right to challenge his sentence or the manner in which it was
determined in any collateral attack, including but not limited to, a motion
under 28 U.S.C, § 2255, The waiver in this paragraph does not apply to
a claim of involuntariness, or ineffective assistance of counsel, which
relates directly to this waiver or its negotiation.

Plea Agreement at 8-9. Based on the clear language of this provision, Chavez has
waived his rights to file a Section 2255 petition, unless that petition alleges that the
waiver or the negotiation that preceded it were made involuntarily or without effective
assistance of counsel. Plea agreement waivers of this sort have been routinely upheld

in the Seventh Circuit. See United States v. Sines, 303 F.2d 793, 798 (7th Cir, 2002),

However, even where a defendant alleges ineffective assistance of counsel on
a Section 2255 petition that is otherwise barred by a plea agreement waiver, the waiver
may still apply, This is because in scenarios such as Chavez’s, “the right to mount a
collateral attack pursuant to Section 2255 survives with respect to those discrete claims
which relate directly to the negotiation of the waiver.” Jones v. United States, 167
F.3d 1142, 1145 (7th Cir. 1999) (emphasis added). We are therefore required to
“explore the nature of’ Chavez’s claims “to determine if his challenge relates to the

negotiation of the waiver.” United States v. Mason, 211 F.3d 1065, 1069 (7th Cir.

-6-


2003, and is postmarked the same day. The government contends that FC] Lompoc
policy relating to prisoner legal mailing is as follows:

The prison’s policy is to collect mail daily (with the exception of

weekends) from mailboxes specifically designated for the delivery of

legal mail. Once the mail is collected from these mailboxes, the back of

the envelope is stamped, dated and delivered to the United States Postal

Service that same day.
Gov. Mot. at 3. Based on the government’s assertions and the FCI Lompoc stamp on
Chavez’s envelope, we do not believe that Chavez delivered his petition to the proper
authorities on October 9, 2003. It is far more likely that, knowing the date to be critical
to his petition, Chavez wrote October 9, 2003, on his Certificate of Service but actually
delivered his petition to the FCI Lompoc mailbox at a later date. As such his petition
should be dismissed as time-barred.

Even assuming that his petition was timely filed, it must be denied on the merits.
To begin, the majority of the grounds for relief cited by Chavez are barred by the terms
of his plea agreement, which waived his right to direct appeal or collateral attack for
all but two narrow issues. According to his plea agreement:

11, Defendant understands that by pleading guilty he is waiving all the

rights set forth in the prior paragraph [explaining certain constitutional

and statutory protections]. Defendant’s attorney has explained those

rights to him, and the consequences of his waiver of those rights.

Defendant further understands he is waiving all appellate issues that

might have been available if he had exercised his right to trial, and may
only appeal the validity of this plea of guilty.

5+



Given that Chavez is pro se petitioner, we will give the remainder of. his petition
a liberal reading. Chavez’s surviving claims allege that Meczyk’s counsel was
ineffective in that he did not vigorously defend Chavez because Chavez could not pay
Meczyk $100,000. Asaresult, Chavez contends that Meczyk did not explain the terms
of his plea agreement nor inform Chavez that he was actually signing a plea agreement.
These assertions can be said to relate to the Meczyk’s effectiveness in negotiating
Chavez’s waiver of collateral attack rights or the voluntariness of Chavez’s waiver, so
they are not barred by his plea agreement.

When a criminal defendant asserts a claim of ineffective assistance of counsel,
he bears a “heavy burden” in overcoming the “strong presumption” that his lawyer’s
assistance was effective and reasonable, United States v. Trevino, 60 F.3d 333, 338,
(7th Cir. 1995) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). The
defendant must point to specific acts or omissions by the lawyer that form the basis of
his claim and the court must then determine whether, in light of all the circumstances,
the lawyer’s conduct fell outside the wide range of professionally competent assistance.
Id.

Upon reviewing the record we find that Meczyk’s assistance of counsel was
neither ineffective nor unreasonable, and that Chavez knowingly and voluntarily

entered his plea. On April 30, 2002, the day we accepted Chavez’s guilty plea, he

-8-



Minte Order Form (06/97)

ol United States District Court, Northern District of Mlinois
Ni of Assigned Judge Sit cy ©
roe Maglteate Judge Charles P. Kocoras han Arigned Indee
CASE NUMBER 03 C 7850 DATE 4/16/2004
CASE US vs. Camelo Chavez (01 CR 836-3)
TITLE

(1n the following bux (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state bretly the nature
of the motion being prescnted.]

MOTION:

DOCKET ENTRY:

(ap) im Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

@) im} Answer bricfto motion duc____. Reply to answer bricfdue__

@) o Ruling/Hearing onset fora

(5) o Status hearing[hceld/continued to] [set for/re-set for]on__——ssetfor_— at
(6) g Pretrial conference[held/continued to] [set for/re-sct for)}on_— set for at.
(7) o Trial[set for/re-set for]on at.

(8) Og [Bench/Sury trial] [Hearing] held/continued toa

(9) o This case is dismissed [with/without] prejudice and without costs[by/agrcement/pursuant to}

OPRCP4(m) CLocal Rule 41.1 OFRCP4 (a) OO FRCPAI(a\(2).

(10) Ml [Other docket entry) ENTER MEMORANDUM OPINION: Chavez’s motion to vacate, set
aside, or correct his sentence is denied. All other pending motions are moot.

(il) @ [For further detail see order attached to the original minute order.]

fee ‘Document
Number:

No notices required, advised in open court.

No notices required, be
Nohices regi number of notices

Notices mailed by judge's statf,

Notified counsel by telephone,

v Docketing to mail notices,
vw | Mail AO 40 form.

Copy to inert judge.

sat walled ot
courtroom ed eete

deputy’s
initials

Date/time received in
central Clerk's Office mailing deputy initia ts



proceeded to trial. We therefore find that the assistance of counsel by Meczyk and his
associates was neither ineffective nor unreasonable and that Chavez’s voluntarily and
intelligently negotiated plea agreement should stand,
CONCLUSION
Based on the foregoing analysis, Chavez's motion to vacate, set aside, or correct

his sentence is denied.

Charles P. Kocoras
Chief Judge
United States District Court

Dated: APR 16 2004

-10-


2000). For instance, examples of ineffective assistance of counsel allegations that
would not relate to the negotiation of a waiver would include claims that an attorney
did not question the drug quantity attributable to a defendant, did not repeatedly persist
for a downward sentencing departure, id., or incorrectly calculated criminal history
points, Daniel v. United States, 2001 WL 76335 (N.D. Ill. 2001).

Four of the six discrete grounds that Chavez cites as evidence of ineffective
assistance of counsel relate to conduct by Meczyk that is outside the scope of the
negotiation of Chavez’s waiver. Chavez accuses Meczyk of failing to file pretrial
motions to suppress evidence and to establish relative culpability among Chavez and
his co-defendants. While these alleged ineffective assistance of counsel claims could
be said to relate to Chavez’s bargaining position prior to entering his plea, Chavez
cannot demonstrate any nexus between a theoretically weakened negotiating posture
and his waiver of collateral attack rights, a standard provision of plea agreements.
Chavez also alleges ineffective assistance of counsel in that Meczyk did not object to
certain inaccuracies in Chavez’s Pre-Sentence Report and did not file an appeal. Not
only did Chavez waive his right to appeal but Meczyk’s conduct prior to and after
sentencing occurred well after Chavez had signed his plea agreement and clearly
cannot be said to relate to the agreement's (waiver of collateral attack rights included)

negotiations. For these reasons, the above claims were waived and are thus barred.

-7-



notice of appeal after Chavez requested that he do so. The government now moves to
dismiss Chavez’s petition.
LEGAL STANDARD

Relief under 28 U.S.C. § 2255 is limited to situations where a federal criminal
defendant’s conviction or sentence is based on “an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect which inherently results in a
complete miscarriage of justice.” Bischel v. United States, 32 F.3d 259, 263 (7th Cir.
1994) (citations omitted). Ifthe court finds that any such error occurred, it will vacate
or set aside the defendant’s sentence, and the defendant will then be discharged,
resentenced, or granted a new trial. Key v. United States, 2002 WL 483418, *1 (N.D.
Ill. 2002) (citing 28 U.S.C. § 2255). When reviewing a Section 2255 petition, the
district court must review the record and draw all reasonable inferences in favor of the
government. Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992). Because
Chavez has filed his petition pro se, his petition is entitled to a liberal reading. Blake
v. United States, 841 F.2d 203, 205-206 (7th Cir. 1998). With these considerations in
mind we now turn to Chavez’s petition.

DISCUSSION
The government first argues that Chavez’s petition must be dismissed because

itis time-barred. Petitions brought under 28 U.S.C. § 2255 are governed by a “1-year

3-



in accordance with a plea agreement with the government that was signed the same
day. As part of the agreement, in return for his guilty plea, the government promised
not to file a sentencing enhancement under 21 U.S.C. § 846 and to dismiss the
remaining count against Chavez, possessing with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1). On October 9, 2002, we sentenced Chavez to
seventy-eight months imprisonment and five years of supervised release. Chavez is
currently incarcerated at the Federal Correction Institution in Lompoc, California(“FC]
Lompoc”).

On November 4, 2003, this court received Chavez’s present petition for habeas
corpus relief under 28 U.S.C. § 2255, alleging that his attorney Ralph Meczyk provided
ineffective assistance of counsel. Specifically, Chavez contends that Meczyk’s counsel
was ineffective for the following reasons: (1) Meczyk allegedly did not vigorously
defend Chavez because Chavez could not pay Meczyk $100,000 in tees; (2) Meczyk
failed to file pretrial motions to suppress the government’s evidence; (3) Meczyk failed
to file motions in order to establish relative culpability among Chavez and his co-
defendants; (4) Meczyk did not explain the terms of the plea agreement or inform
Chavez that he was actually signing a plea agreement; (5) Meczyk did not object to

certain inaccuracies in Chavez’s Pre-Sentence Report; and (6) Meczyk did not file a



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA, )
Plaintiff, }
vs. 03 C 7850
CAMELO CHAVEZ, ; (01 CR 836-3)
Defendant.
MEMORANDUM OPINION

CHARLES P. KOCORAS, Chief District Judge:

This matter comes before the court on Camelo Chavez's (“Chavez”) petition to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, For the reasons
set forth below, the petition is denied.

BACKGROUND

On October 2, 2001, Chavez and others were arrested for their involvement in
the attempted sale of one kilogram of cocaine to an undercover agent. On December 6,
2001, Chavez was charged in two counts of an indictment alleging that he was part of
a cocaine distribution conspiracy. In this court, on April 30, 2002, Chavez pleaded
guilty to the offense of conspiracy to possess with intent to distribute and to distribute

cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. Chavez’s guilty plea was