James Batemon, Jr. v. United States of America

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 26, 2006*
Decided October 26, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1315
JAMES BATEMON, JR.,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States
District Court for the Eastern
District of Wisconsin
No. 2:03-cv-01234-RTR
Rudolph T. Randa,
Chief Judge.
O R D ER
James Batemon appeals the denial of his collateral challenge to a conviction
under 18 U.S.C. § 924(c). We affirm the judgment.
A Wisconsin court issued a warrant to search Batemon’s residence, and
during the search police and federal agents found cocaine and a digital scale in the
kitchen, a loaded .38-caliber Derringer in the dining room, and a box of ammunition
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 06-1315 Page 2
in another room. A federal grand jury charged Batemon with possession of a
firearm by a felon, 18 U.S.C. § 922(g)(1), and possession of cocaine with intent to
distribute, 21 U.S.C. § 841(a)(1). Batemon moved to suppress the items seized
during the search, arguing that the warrant was executed after its expiration under
Wisconsin law. The district court denied the motion on the ground that the warrant
was executed within the longer period of time allowed in the Federal Rules of
Criminal Procedure.
The parties then reached a plea agreement. The government agreed to
dismiss the drug count in exchange for Batemon pleading guilty both to the § 922(g)
count and to a newly filed information charging that he used and carried the
Derringer during and in relation to the cocaine offense and, alternatively, possessed
the gun “in furtherance of such crime,” see 18 U.S.C. § 924(c)(1). The plea
agreement identified the statutory elements and penalties for each offense and
informed Batemon that his prison sentence for the § 924(c) count would run
consecutively to any sentence imposed for the § 922(g) violation. In addition, the
agreement specified that Batemon “acknowledges and understands that . . . he
surrenders any claims he may have raised in any pretrial motion.” Batemon signed
the plea agreement below an acknowledgement that he executed it voluntarily after
reviewing “every part” of the document and “all aspects” of the case with his lawyer.
At the change-of-plea hearing, Batemon told the district court under oath
that no one had threatened him, or made any promises not memorialized in the plea
agreement, to induce his guilty pleas. Batemon said he was satisfied with his
lawyer but nonetheless accepted the court’s invitation to speak with counsel off the
record during the hearing. When the conversation ended, counsel informed the
court that she had again discussed the § 924(c) count with Batemon and explained
that it was “in lieu of” the dismissed drug charge. Counsel added that she had gone
over the § 924(c) count with Batemon previously at the jail but had also “reviewed
that again here with him this morning.” The court asked Batemon if he understood,
and Batemon said he did. The court then informed him about the maximum
penalty under § 922(g) and the minimum and maximum sentences under § 924(c).
Batemon proceeded to plead guilty, and the court later sentenced him to 46 months
on the § 922(g) count and 60 months to run consecutively on the § 924(c) count.
Batemon filed a direct appeal, but the lawyer we appointed to replace trial
counsel moved to withdraw under Anders v. California, 386 U.S. 738, 744 (1967),
because he was unable to identify a nonfrivolous issue to pursue. We allowed
counsel to withdraw and dismissed the appeal as frivolous. United States v.
Batemon, 50 F. App’x. 320 (7th Cir. 2002). Batemon then moved to vacate his
§ 924(c) conviction, see 28 U.S.C. § 2255, on the grounds that (1) his guilty plea to
that offense was rendered involuntary by the absence of an adequate factual basis
and the district court’s purported failure to inform him of the statutory elements

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and penalties, and (2) his trial lawyer was ineffective because she purportedly failed
to tell him about the elements of § 924(c) and misrepresented that even after
pleading guilty he could still challenge on appeal the adverse ruling on his motion
to suppress. The district court denied the motion but granted a certificate of
appealability as to both claims. Batemon presses both on appeal.
Batemon’s claim concerning the voluntariness of his guilty plea is frivolous.
Because his present contention that the plea to the § 924(c) count lacked an
adequate factual basis was presented on direct appeal, it cannot form the basis for
his present claim under § 2255. In dismissing Batemon’s direct appeal as frivolous,
we noted that he “was charged with possessing a firearm ‘in furtherance of’ a drug
crime, and the record supplies an ample factual basis for a plea to that charge.”
Batemon, 50 F. App’x. at 320 (emphasis by the court). The same answer applies to
Batemon’s assertion that during the plea colloquy the district court did not disclose
the statutory elements. Batemon’s appellate counsel identified this omission as
another potential issue in his Anders brief, but we deemed the point frivolous
without discussion. As appellate counsel noted, the elements were set out in the
plea agreement, so the court’s failure to recite them again was harmless. Batemon
stated under oath during the colloquy that he understood the § 924(c) charge, and
that statement is presumed to be truthful. United States v. Loutos, 383 F.3d 615,
619 (7th Cir. 2004); United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002).
Finally, as to the applicable penalties, the court told Batemon both the minimum
and maximum prison term under the statute. The court neglected to mention that
the sentence on the § 924(c) count would be consecutive, but, again, the plea
agreement disclosed that detail.
Equally friviolous is Batemon’s claim that trial counsel rendered ineffective
assistance. Batemon alleged that counsel neglected to discuss with him the
elements of § 924(c), but the record demonstrates this allegation to be false:
Batemon acknowledged in his plea agreement that counsel “discussed all aspects” of
the case with him, and he did not contradict counsel when she told the court during
the plea colloquy that she had reviewed the § 924(c) charge with him both in the
courtroom and previously at the jail. Moreover, the elements were spelled out in
the plea agreement, and the government made an offer of proof at the plea colloquy,
including the facts necessary to meet the § 924(c) charge. Batemon even agreed
that those facts were correct.
And, finally, the absence of any conceivable prejudice answers Batemon’s
allegation that counsel misinformed him that his guilty plea would not preclude
him from raising an argument on direct appeal about the denial of his motion to
suppress. Batemon insists that Wis. Stat. § 968.15 requires that a search warrant
be executed within “five days” of issuance, and that limit, he says, was exceeded in
this case because the warrant for his residence was issued on February 4, 2001, at

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10:45 a.m. but not executed until February 9, 2001, at 11:05 a.m. That was 20
minutes late by Batemon’s calculation. But the district court was correct in holding
that compliance with the state time limit is not controlling in assessing whether the
search was reasonable. See United States v. Martin, 399 F.3d 879, 880-81 (7th Cir.
2005). Moreover, the premise of Batemon’s motion is flawed because in fact the
warrant was executed in a timely manner under state law. Batemon assumes that
the fifth day ended at 10:45 a.m. on February 9, but under state law the officers
were free to execute the warrant any time on the fifth day. See State v. Edwards,
297 N.W.2d 12, 14 (Wis. 1980) (holding that warrant issued September 23 at 12:20
p.m. and returned September 28 at 2:05 p.m. was executed within the prescribed 5
days, which did not begin to run until the day following the issuance of the
warrant). Batemon’s suppression motion was accordingly without merit, so counsel
could not have prejudiced Batemon by telling him that the district court’s denial of
the motion could be challenged on appeal. See United States v. Cieslowski, 410 F.3d
353, 360 (7th Cir. 2005) (noting that defendant claiming ineffective assistance of
counsel for failure to present a motion to suppress must establish that motion was
meritorious); United States v. Stewart, 388 F.3d 1079, 1084 (7th Cir. 2004) (same).
AFFIRMED.

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