Shawn R. Washburn v. United States of America

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 15, 2007
Decided August 16, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-1461
SHAWN R. WASHBURN,
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. 3:05-cv-774-RLM
Robert L. Miller, Jr.,
Chief Judge.
O R D E R
Shawn Washburn pleaded guilty to possessing 24 pounds of
methamphetamine and was sentenced to 179 months of imprisonment. See 21
U.S.C. § 841(a)(1). As part of his plea agreement, he waived his right to contest his
sentence on direct appeal or in a collateral proceeding but preserved his right to
challenge on direct appeal the denial of his motion to suppress. Washburn did
appeal and we upheld the district court’s ruling. See United States v. Washburn,
383 F.3d 638 (7th Cir. 2004). Washburn then filed a motion under 28 U.S.C. § 2255,
claiming in part that his trial counsel was ineffective for failing to interview David
Morgan, a purported informant, and for “failing to object to the reference of the
informant’s testimony or information by agents who testified at the suppression
hearing where the informant was not cross-examined.” The district court denied
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07-1461 Page 2
the motion, but granted a certificate of appealability limited to the question
whether trial counsel was ineffective in not calling Morgan during the suppression
hearing. We affirm the denial of Washburn’s § 2255 motion.
We recount the facts from our prior decision on direct appeal. See Washburn,
383 F.3d at 639-40. Police learned of Washburn’s drug activity after arresting some
of his customers. Police first arrested Jessie Tijerina for possessing a pound of
methamphetamine. Tijerina, in cooperation with law enforcement, arranged to buy
more drugs from his supplier, Thomas Wright. Police intercepted Wright’s drug
caravan en route to Tijerina, and discovered ten pounds of methamphetamine in the
trunk of one of the caravan’s cars in which Morgan was a passenger. Both Wright
and Morgan told police they received the drugs from Washburn. Morgan added that
Washburn keeps his drugs in a black duffle bag in his Chevrolet conversion van,
which he described as having a wood-grain interior and graphics on the white
exterior. Like Tijerina, Morgan agreed to cooperate with police and arrange a
controlled buy from Washburn. In two phone calls recorded by police, Washburn
told Morgan that he would drive his same white conversion van to the Weston Plaza
in Elkhart, Indiana, and meet Morgan there at 7:00 p.m. with 12 pounds of
methamphetamine in a black bag. At 7:00 p.m. police observed a white conversion
van registered to Washburn pull into the Weston Plaza area. Police stopped
Washburn and, pursuant to a search warrant, discovered more than 14 pounds of
methamphetamine in a black bag inside of the van.
Washburn contends that trial counsel should have called Morgan to testify at
the suppression hearing because his testimony “would have negated probable
cause.” To support this contention, Washburn attached to his § 2255 motion an
affidavit from Morgan in which he denies describing Washburn’s van or the bag in
which Washburn kept his drugs.
The government responds that Washburn cannot raise this Sixth
Amendment claim in collateral proceedings because he did not expressly reserve it
in his plea agreement, but that contention is groundless. Washburn’s conditional
guilty plea controlled only the scope of his direct appeal, not any subsequent § 2255
motion. See Fed. R. Crim. P. 11(a)(2). And though a defendant may give up the
right to pursue a collateral attack as part of a plea agreement, see, e.g., Nunez v.
United States, No. 06-1014, slip op. at 1, 3 (7th Cir. July 31, 2007), Washburn did
not do so. He did give up the right to challenge his sentence by way of § 2255, but
that is all. See United States v. Vega, 241 F.3d 910, 911-12 (7th Cir. 2001);
Bridgeman v. United States, 229 F.3d 589, 591-92 (7th Cir. 2000); United States v.
Behrman, 235 F.3d 1049, 1052 (7th Cir. 2000); Blacharski v. United States, 215
F.3d 792, 793-94 (7th Cir. 2000).
Still, Washburn’s claim is patently frivolous. To establish that trial counsel

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No. 07-1461 Page 3
was ineffective, Washburn needed to show that his lawyer acted unreasonably in
not calling Morgan and that he suffered prejudice as a result. See Strickland v.
Washington, 466 U.S. 668 (1984); Barrow v. Uchtman, 398 F.3d 597, 603-04 (7th
Cir. 2005). Here, given that the government recorded Washburn telling Morgan
that when they met he would bring 12 pounds of methamphetamine in a black bag
and drive his white conversion van, it surely would have made no difference if
Morgan had testified and denied describing Washburn’s van or drug bag to officers.
Thus, counsel’s decision not to present Morgan’s testimony was neither deficient nor
prejudicial. See Eckstein v. Kingston, 460 F.3d 844, 849 (7th Cir. 2006) (holding
that counsel was not ineffective for failing to impeach witness with evidence of her
mental illness where recorded conversation between defendant and witness
corroborated witness’s testimony that defendant hired her to kill his wife).
AFFIRMED.

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