In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2463

THOMAS MASON,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 99 CV 6--Robert L. Miller, Jr., Judge.


Argued December 8, 1999--Decided May 8, 2000



  Before HARLINGTON WOOD, JR., COFFEY and FLAUM, Circuit
Judges.

  COFFEY, Circuit Judge. Thomas Mason participated
in a drug conspiracy from 1993-1996 in Elkhart,
Indiana and along with his co-conspirators
distributed at least 34.2 kilograms of cocaine
during that time frame. On March 7, 1997, a grand
jury for the Northern District of Indiana
returned a 34-count indictment charging Mason and
eight other individuals with various drug-related
crimes. Mason was named in four of the 34 counts.


  On April 4, 1997, Mason entered a plea of not
guilty to all counts charged in the indictment.
On August 12, 1997, Mason appeared before the
trial court and pled guilty to participating in
a drug conspiracy under 21 U.S.C. sec. 846, as
charged in Count One of the indictment. As part
of the plea agreement, the government agreed to
dismiss the three remaining counts against Mason
and, in exchange, Mason waived the right to
appeal or to challenge his sentence in any
proceeding, including the filing of any petition
pursuant to 28 U.S.C. sec. 2255./1
  On January 6, 1998, the trial judge sentenced
Mason to 151 months’ imprisonment. After his
sentencing, Mason filed a petition pursuant to
sec. 2255 requesting that his sentence be vacated
due to a denial of due process and ineffective
assistance of counsel. The judge denied Mason’s
petition. We affirm.

I.   BACKGROUND

A.   The Drug Conspiracy

  Mason was charged in a drug conspiracy that
operated primarily in Elkhart, Indiana from 1993
through 1996. Sam Stanciel, also known as
"Bootsie," who was the leader of the conspiracy,
moved from Chicago, Illinois to Elkhart in 1993,
and began to supply Mason and other members of
the drug enterprise with cocaine and cocaine base
("crack"). Investigators calculated that
throughout the conspiracy, the group distributed
over 1.5 kilograms of cocaine base. Initially,
Mason received ounces of powder cocaine from
Bootsie for distribution, but the amount
escalated to kilograms before the conspiracy
terminated. Both Mason and Cedric Ware, who
worked for Mason, distributed the cocaine in the
form of crack at times.

B.   The Plea Agreement and Change of Plea Hearing

  On August 12, 1997, Mason appeared before the
trial judge with his attorney and stated that he
wanted to plead guilty to the conspiracy to
distribute cocaine and cocaine base as charged in
Count One of the indictment. The judge placed
Mason under oath and questioned him to ensure
that everyone had the same understanding of the
terms of the plea agreement and that Mason was
voluntarily entering into the agreement. During
questioning from the district court, Mason
acknowledged that he was satisfied with his
attorney’s performance in representing him and
also informed the court that he had read the
"Petition to Enter a Plea" prior to signing it.
Mason acknowledged that the petition contained
the same terms upon which he and the government
had agreed.

  The court reviewed the plea agreement at the
hearing with Mason and recited the penalties that
he faced, explaining that he could receive a
minimum penalty of at least ten years’
imprisonment and a maximum of life imprisonment,
together with a possible four million dollar
fine. The trial judge went on to describe to
Mason how the sentencing guidelines operate and
the binding recommendation that he would be
sentenced at the low end of the guidelines. The
judge also stated that the plea agreement
required the government to make a sec. 5K1.1/2
motion for a downward departure if Mason were to
continue to cooperate, but that the ultimate
decision regarding whether to depart downward
rested solely with the court.
  During the hearing, the district judge also
addressed the provision in the written plea
agreement that dealt with Mason’s waiver of his
right to appeal as well as his right to attack
his sentence in any separate proceeding at a
later time. Mason acknowledged that he understood
that he was waiving these rights and the other
rights delineated in the plea agreement that
accompany a trial. After determining that the
defendant fully understood the terms of the plea
agreement, the judge proceeded to establish a
factual basis for the plea. In open court, Mason
described the drug conspiracy spearheaded by Sam
"Bootsie" Stanciel. Mason further acknowledged
his personal involvement with over 50 grams of
cocaine base and 5 kilograms of cocaine. Based on
the responses Mason gave to the questions asked
of him at the change of plea hearing, the trial
court found that the defendant’s plea was being
made knowing and voluntary.

C.   Mason’s Sentence

  Several months after Mason had entered his plea
of guilty, and following a sentencing hearing,
the court imposed sentence on Mason. The
defendant initially faced a sentencing range of
188-235 months. However, based on his substantial
assistance, the government moved the court for a
two-level downward departure. See 28 U.S.C. sec.
2255. Mason moved for a four-level departure. See
id. Acknowledging that it was not bound by either
recommendation, the district court applied a two-
level departure, consistent with the government’s
recommendation, based on its conclusion that
Mason’s assistance, although substantial, was not
exceptional. Mason was sentenced to 151 months’
imprisonment on January 6, 1998.

D.   Mason’s sec. 2255 Petition

  Despite the fact that the plea agreement
contained an express provision wherein Mason
agreed that he would neither appeal nor launch a
collateral attack on his sentence,/3 on January
5, 1999, Mason asked that his sentence be vacated
pursuant to 28 U.S.C. sec. 2255. Mason based his
sec. 2255 claim on ineffective assistance of
counsel and a denial of due process, arguing that
he would have received a lower sentence had his
counsel made certain other arguments at the
sentencing hearing. Specifically, he asserted
that his attorney should have objected to 1) the
amount of drugs attributed to him, and 2) what
Mason perceives to be the district court’s
misapplication of the sentencing guidelines with
respect to its authority to depart. In spite of
the fact that he advised the trial court that he
was satisfied with his attorney’s representation,
Mason contended that the errors committed by his
counsel substantially infringed upon his right to
due process of the law.

E.    The Decision of the District Court

  The trial court denied Mason’s sec. 2255
petition. The court explained that Mason had
waived his right to attack his sentence when he
knowingly and voluntarily entered into the plea
agreement. The judge further explained that
although Mason couched his argument in terms of
ineffective assistance and denial of due process,
his petition was, in reality, merely an attack on
his sentence and the manner in which it was
determined. Although Mason claimed that his
sentence was too long due to the deficient
performance of his attorney, he never claimed
that his waiver was the result of ineffective
assistance or that he did not knowingly and
voluntarily agree to the terms of the plea. Thus,
he could not raise the issues in his sec. 2255
petition. The district judge then proceeded to
analyze Mason’s ineffective assistance claim on
the merits and determined that, even if he had
not waived the right to seek post-conviction
relief, Mason had failed to establish that his
attorney’s legal assistance amounted to
ineffective assistance of counsel. Mason appeals
the denial of his sec. 2255 claim to this Court.

II.    ISSUES

  On appeal, we consider: 1) whether Mason, in
his plea agreement, waived the right to seek
post-conviction relief; and 2) if not, whether
the district court erred in denying Mason’s sec.
2255 motion alleging ineffective assistance of
counsel.

III.    DISCUSSION

A. The Effect of the Plea Agreement on Mason’s
Right to Seek Post-Conviction Relief

  Mason argues that the waiver he made as part of
the plea agreement does not preclude his claim of
ineffective assistance of counsel. He argues that
he is challenging his counsel’s deficient
performance, not his sentence itself. Because
one’s entitlement to effective assistance is a
fundamental right, Mason asserts that no
defendant may ever waive the right to seek post-
conviction relief on the grounds of ineffective
assistance of counsel. Thus he contends that the
trial judge erred in denying his petition for
post-conviction relief under sec. 2255.
  This Court reviews a district court’s denial of
a sec. 2255 petition on factual matters for clear
error, and on questions of law de novo. See
Arango-Alvarez v. United States, 134 F.3d 888,
890 (7th Cir. 1998); Wilson v. United States, 125
F.3d 1087, 1090 (7th Cir. 1997).

  The trial court held that Mason waived his
right to bring a sec. 2255 petition, and
furthermore that Mason’s claim of ineffective
assistance is nothing more than a challenge to
his sentence. Under the law of this circuit, the
trial judge reasoned, Mason’s waiver stands
unless it can be established that he entered his
guilty plea without knowing or understanding the
terms thereof, or unless he claims ineffective
assistance in connection with the negotiation of
the waiver. Based on Mason’s statements at the
plea hearing, the judge properly concluded that
Mason knowingly and voluntarily entered into the
plea agreement and that the defendant stated that
he was satisfied with the performance of his
counsel at the time of the entry of the plea. The
trial judge had a colloquy with Mason in which he
explained the sentence that he faced, and,
furthermore, that he was also giving up his right
to appeal the sentence or in any way challenge
it. The court was satisfied that Mason fully
understood the rights that he was waiving and
that when he answered the judge’s questions in
the affirmative he fully understood what he was
relinquishing and made his decision to waive
those rights freely and voluntarily. He only
became dissatisfied with his counsel’s
performance after the court imposed the sentence
upon him.

  In Jones v. United States, 167 F.3d 1142 (7th
Cir. 1999), this Court addressed for the first
time the issue of the enforcement of a plea or
cooperation agreement that also waives the right
to file a petition under sec. 2255. We noted in
Jones that such a waiver is enforceable only if
it is knowing and voluntary and if the defendant
cannot establish a claim of ineffective
assistance of counsel in connection with
negotiating the agreement. However, we cautioned
in Jones that it is only in these situations that
a waiver is unenforceable:

Justice dictates that a claim of ineffective
assistance of counsel in connection with the
negotiation of a [plea] agreement cannot be
barred by the agreement itself--the very product
of the alleged ineffectiveness. . . . Similarly,
where a waiver is not the product of the
defendant’s free will--for example, where it has
been procured by government coercion or
intimidation--the defendant cannot be said to
have knowingly or voluntarily relinquished his
rights. It is intuitive that in these
circumstances the waiver is ineffective against
a challenge based on its involuntariness. Mindful
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 sec. 2255 survives only with
respect to those discrete claims which relate
directly to the negotiation of the waiver.

Id. at 1145 (emphasis added).

  Jones requires us to explore the nature of
Mason’s claim to determine if his challenge
relates to the negotiation of the waiver. In
other words, 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? The trial judge determined that the
answer to both of these questions was "no."

  Upon our review of the record, including the
transcript from the change of plea hearing, we
refuse to hold that the judge’s findings in this
regard were clearly erroneous. Mason is not
challenging the voluntariness of the negotiation
of the waiver in his plea agreement; in fact,
neither did he claim before the trial court nor
before this Court that his decision to enter into
the agreement was anything but voluntary. The
record demonstrates that Mason volunteered to
cooperate and enter into an agreement with the
government in order that he might possibly
receive the benefit of a lighter sentence. Nor
does Mason claim that he received ineffective
assistance of counsel with respect to the
negotiation of the waiver. To the contrary, when
specifically questioned by the trial judge during
the change of plea hearing, Mason stated that he
was pleased with the performance of his attorney
up to that time and that his attorney had done
everything that Mason expected of him. Mason
merely challenges the fact that his attorney did
not adequately challenge the drug quantity for
which Mason was held accountable and the fact
that he did not persist in his request for a
downward departure greater than the two levels
granted by the sentencing court./4

  Mason’s ineffective assistance of counsel claim
relates only to his attorney’s performance with
respect to sentencing. Because the challenge has
nothing to do with the issue of a deficient
negotiation of the waiver, Mason has waived his
right to seek post-conviction relief. See Jones,
167 F.3d at 1145. Thus, the trial court’s denial
of his sec. 2255 petition was proper.

B. Mason’s Ineffective Assistance of Counsel
Claim

  We need not reach the issue of whether the
performance of Mason’s counsel was deficient, in
light of our holding that Mason has waived his
right to bring such a claim based on the
enforceable terms of his plea agreement. Based on
our review, even if we were to reach the claim of
ineffective assistance of counsel we would
disagree with Mason’s contentions.

IV.   CONCLUSION

  We hold that Mason has waived his right to seek
post-conviction relief and that the district
court acted properly in denying his sec. 2255
motion. The decision of the district court is

AFFIRMED.



/1 28 U.S.C. sec. 2255 provides, in relevant part,
as follows:

A prisoner in custody under sentence of a court
established by Act of Congress claiming the right
to be released upon the ground that the sentence
was imposed in violation of the Constitution or
laws of the United States, or that the court was
without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to
collateral attack, may move the court which
imposed the sentence to vacate, set aside or
correct the sentence.

/2 U.S.S.G. sec. 5K1.1 provides:

Upon motion of the government stating that the
defendant has provided substantial assistance in
the investigation or prosecution of another
person who has committed an offense, the court
may depart from the guidelines.

(a) The appropriate reduction shall be
determined by the court for reasons stated that
may include, but are not limited to,
consideration of the following:

(1) the court’s evaluation of the significance
and usefulness of the defendant’s assistance,
taking into consideration the government’s
evaluation of the assistance rendered;

(2) the truthfulness, completeness, and
reliability of any information or testimony
provided by the defendant;

(3) the nature and extent of the defendant’s
assistance;

(4) any injury suffered, or any danger or risk
of injury to the defendant or his family
resulting from his assistance;

(5) the timeliness of the defendant’s
assistance.

/3 The plea agreement, signed by the government and
Mason, contained the following paragraph:

I further expressly waive my right to appeal my
sentence on any ground, including any appeal
right conferred by Title 18, United States Code,
Section 3742. I also agree not to contest my
sentence or the manner in which it was determined
in any post-conviction proceeding, including, but
not limited to a proceeding under Title 28,
United States Code, Section 2255.

/4 The record reflects that Mason’s attorney
requested a four-level downward departure and
provided the district court with reasons in
support of such a departure.
