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May 29, 2003


The opinion of the court was delivered by: Elaine E. Bucklo, District Judge


Plaintiff Latidtus Jones pled guilty to bank robbery and was sentenced to 153 months imprisonment. Following a challenge to his sentence on appeal, the Seventh Circuit remanded for resentencing. United States v. Jones, 235 F.3d 342 (7th Cir. 2000). On remand, Mr. Jones was sentenced to 100 months imprisonment. When Mr. Jones again appealed his sentence, his attorney at the time moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), claiming that he could not discern a nonfrivolous issue for appeal.*fn1 After reviewing counsel's Anders brief and Mr. Jones' response, the Seventh Circuit concluded that no nonfrivolous argument could be raised in support of the appeal. United States v. Jones, No. 02-1279, 2002 WE 1559613, at **1 (7th (Mr. July 12, 2002) (unpublished order). Mr. Jones' counsel was permitted to withdraw and the appeal was dismissed. Mr. Jones, acting pro se, now brings a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. I deny the motion.

Mr. Jones asserts seven grounds for his § 2255 motion: (1) ineffective assistance of counsel at the plea hearing, (2) ineffective assistance of counsel at the first sentencing hearing, (3) ineffective assistance of counsel on the first appeal, (4) ineffective assistance of counsel at the resentencing hearing, (5) ineffective assistance of counsel on the second appeal, (6) unlawful guilty plea, and (7) unlawful sentencing.

I. Grounds (1)-(5): Ineffective Assistance of Counsel

The general rule is that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice. Massaro v. United States, 123 S.Ct. 1690, (2003). The Court in Massaro made clear, however, that ineffective assistance of counsel claims are an exception to this general rule, and "may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Id. at 1694. Thus, Mr. Jones may raise his ineffective assistance claims here.

In order to prevail on a claim of ineffective assistance of counsel, Mr. Jones must demonstrate that the performance of his counsel was deficient, and that he was prejudiced by the deficient performance. Kitchen v. United States, 227 F.3d 1014, 1019-20 (7th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Judicial review of attorney performance is highly deferential, and there is a strong presumption that the attorney's performance was reasonable. Strickland, 466 U.S. at 689. Even if Mr. Jones' counsel's performance was deficient, Mr. Jones must show that there is a reasonable probability that, but for the deficient performance, the result of the proceedings would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

A. The Plea Hearing

Mr. Jones first contends that he was denied effective assistance of counsel with respect to his plea hearing. Mr. Jones argues that his attorney spent insufficient time with him prior to the plea hearing, such that Mr. Jones was unable to advise his counsel of the entire story surrounding the bank robbery, and that his counsel was unable to adequately explain the meaning and ramifications of the guilty plea. Mr. Jones' attorney was also unaware of the fact that Mr. Jones had in the past been committed to a mental hospital. The limited amount of time spent between Mr. Jones and his counsel, as well as Mr. Jones' prior commitment to a mental hospital were brought to my attention at the sentencing hearing, where I found that Mr. Jones was competent to offer a guilty plea, that he felt he had sufficient time with his attorney, and that he understood the nature and ramifications of the proceedings. (Dec. 7, 1999 Hearing Tr. at 4-15.) Mr. Jones' counsel's performance at the plea hearing was not deficient, nor does it undermine confidence in the outcome of that hearing.

B. The First Sentencing Hearing

Mr. Jones next argues that he received ineffective assistance of counsel at his first sentencing hearing. Specifically, he claims that his attorney failed to contest a sentencing enhancement for an attempted carjacking, failed to contest an enhancement for using a threat of death, and failed to contest placement of Mr. Jones in criminal history Category VI.*fn2

Counsel's failure to contest the enhancement for the attempted carjacking does not constitute ineffective assistance. United States Sentencing Guideline § 2B3.1(b)(5) provides for a two-level enhancement for a robbery if the offense involved a carjacking. Carjacking is defined as "the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation." U.S.S.G. § 2B3.1(b)(5) application note 1. Mr. Jones argues that the carjacking allegation was "trumped up and a farce," and that he "simply attempted to coax a lady to let him use her car." (Pl.'s Mot. at 4b.) While Mr. Jones' counsel did not contest the carjacking enhancement, he was successful in challenging an enhancement for reckless endangerment during flight under U.S.S.G. § 3Cl.2, based in part on the fact that I considered that enhancement as double counting the attempted carjacking. (Mar. 10, 2000 Hearing Tr. at 3.) Counsel's tactical decision not to contest the carjacking enhancement but instead to contest the reckless endangerment as double counting does not constitute deficient performance. See United States v. Booker, 981 F.2d 289, 293 (7th Cir. 1992) (where there exists a valid tactical reason that could explain counsel's actions, there is no deficient performance).

Further, even if the failure to contest the carjacking enhancement was deficient, it was not prejudicial because it does not undermine confidence in the outcome. Mr. Jones, who is six feet three inches tall and weighs over two hundred pounds, admitted in his plea that while running from the police he entered a parked car in which a woman was sitting and "asked her for a ride or asked her to please let him use her car." (Dec. 7, 1999 Tr. at 16-17.) Regardless of the government's characterization of the incident, the facts to which Mr. Jones admitted in his plea are sufficient for application of the carjacking enhancement. Force or violence is not required for application of the enhancement; intimidation in the attempted taking of a vehicle is sufficient. The Seventh Circuit has defined intimidation as "saying or doing something in such a way as would place a reasonable person in fear." United States v. Hill, 187 F.3d 698, 700-01 (7th Cir. 1999) (alterations omitted).*fn3 An explicit threat or display of a weapon is not necessary. Id. at 701 ("[e]ven though [defendant] did not expressly threaten [a bank teller] or display a weapon, his actions can be characterized as intimidating."). A large man running and entering a parked car in which a woman is sitting and then asking for a ride or to use the car would place a reasonable person in that woman's position in fear. Cf. United States v. Caldwell, 292 F.3d 595, 597 (8th Cir. 2002) (defendant's act of jumping over bank counter into teller area was intimidating to a reasonable person, even though defendant did not speak or give any indication he had a weapon). Even though the woman involved here in fact did not give up her automobile, whether or not she herself was intimidated is irrelevant. Hill, 187 F.3d at 702. Mr. Jones' action was objectively intimidating, even under his own version of the incident, and application of the carjacking enhancement was appropriate. Counsel's failure to contest it was therefore not prejudicial.

Likewise, counsel's failure to contest the threat of death enhancement also does not constitute ineffective assistance of counsel. U.S.S.G. § 2B3.1(b)(2)(F) provides for a two-level enhancement "if a threat of death was made" during a robbery. Here, Mr. Jones presented a written note to a bank teller that read "Look, pass over the $$. No one gets hurt. I have a gun. Now fast." (Presentence Investigation Report at 4) (hereinafter PSI). Under the guidelines, a threat of death can consist of a written statement. U.S.S.G. § 2B3.1 application note 6. Further, it is well settled in this circuit that the statement "I have a gun" constitutes a threat of death under § 2B3.1(b)(2)(F). United States v. Gibson, 155 F.3d 844, 846 (7th Cir. 1998) (looking not at grammar or perspective of bank robber, but at perspective of reasonable bank teller in determining that "I have a gun" was a threat of death). It is true that this rule is not absolute. Id. at 847 ("It is conceivable that unusual mitigating circumstances accompanying this statement could deprive the words of their ordinary and expected meaning.") (internal quotations omitted). However, Mr. Jones points to no "unusual mitigating circumstances" that would make the note not a threat of death. His argument is thus, as it was at the time of sentencing, a clear loser. Counsel's failure to pursue a fruitless argument is neither deficient performance nor, by definition, prejudicial.

Mr. Jones' argument regarding Category VI criminal history is likewise unavailing. The PSI assessed Mr. Jones thirty criminal history points, placing him in Category VI. Mr. Jones argues that several of the offenses for which he was awarded criminal history points were consolidated and were offenses for which he was sentenced to six months probation to run concurrently with one another. U.S.S.G. ยง 4A1.2 (b) indicates that sentences in "related cases" are to be treated as one sentence for purposes of assigning criminal history points. There are six offenses in the PSI that indicate Mr. Jones was sentenced on the same day to the same sentence of six months probation. Even if all these offenses were "related" as defined by the guidelines however, treating them as a single offense does not bring Mr. Jones out of Category VI. Each offense was assigned two criminal history points. Treating all six offenses as a single offense would reduce Mr. Jones' criminal history score by only ten points. Thus, he would still have a criminal history score of twenty, placing ...

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