United States District Court, N.D. Illinois
March 9, 2004.
SIDNEY POINTER, Petitioner,
UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Before this Court is Sidney Pointer's ("Pointer" or "Petitioner")
petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2255 ("
§ 2255 petition"). For the reasons set forth below, Pointer's motion
is denied in its entirety.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2001, eight individuals, including Pointer, were charged in
connection with an insurance fraud scheme involving the issuance of
fraudulent commission checks. Pointer was the lead defendant, and was
charged with issuing twenty-one fraudulent insurance commission checks to
acquaintances while employed at Glenbrook Life and Annuity Company
("Glenbrook"), an affiliate of Allstate Insurance Company. Seven of the
eight defendants, including Pointer, plead guilty. Pointer plead guilty
to all twenty-two counts of the indictment against him. These counts
charged Pointer with violations of Title 18, United States Code,
Sections 371 (conspiracy), 1033(b) (insurance fraud) and 2 (aiding
and abetting). Pointer entered a blind plea of guilty.
At sentencing, the Parties disputed whether Pointer should receive a
two-level increase pursuant to Guideline § 3B1.3 for abuse of a position
of private trust. During sentencing hearings conducted on June 4, June
18, and June 27, 2002, the Government presented testimony from Glenbrook
employees to attempt to establish that Pointer exercised discretion over
the issuance of checks. Pointer argued that he did not posses the
discretion necessary for abuse of position of private trust. The Court
found that Pointer did abuse a position of private trust and imposed a
two-level enhancement. Additionally, the Court imposed a two-level
increase because Pointer's offense involved more than minimal planning
pursuant to Guideline § 2F1.1(b)(4)(A)*fn1 On June 27, 2002, Pointer was
sentenced to forty-one months incarceration, to be followed by three
years of supervised release. Pointer did not appeal his conviction or
A. Legal Standard for § 2255 Petitions
Under 28 U.S.C. § 2255, federal prisoners can challenge the imposition
or length of the detention if their conviction or sentence has been
founded on an error that is "jurisdictional, constitutional, or is a
fundamental defect which inherently results in a complete miscarriage of
justice." Oliver v. United States. 961 F.2d 1339, 1341 (7th Cir. 1995);
28 U.S.C. § 2255. If the court determines that any of these errors
infected the judgment or sentence, the petitioner's
conviction will be vacated or set aside, and the petitioner will be
discharged, resentenced, or granted a new trial. Id.,
Additionally, after reviewing the petitioner's motion, the government's
answer, and all transcripts or records of prior court proceedings, the
court will determine whether an evidentiary hearing is necessary. See
Rule 8(a) of the Rules Governing Section 2255 proceedings. "If it plainly
appears from the face of the motion and any annexed exhibits and the prior
proceeding in the case that the movant is not entitled to relief in the
district court, the [court] shall make order of summary dismissal." See
Rule 4(b) of the Rules Governing Section 2255 proceeding Liss United
States. 915 F.2d 287, 290 (7th Cir. 1990).
Pointer's petition provides three grounds upon which he contends relief
should be granted,*fn2 Petitioner states that: (1) the Court abused its
discretion when it applied the abuse of position of private trust and more
than minimal planning sentence enhancements; (2) he was denied the
effective assistance of counsel, because his counsel failed to clarify
certain issues relating to those sentence enhancements to the Court; and
(3) he did not plead guilty voluntarily and with the understanding of the
nature of the charges and the consequences of his plea. Each of these
stated grounds for habeas corpus relief will be addressed in turn.
1. Did the Court Abuse its Discretion When Applying the Abuse of
Position of Trust and More Than Minimal Planning Sentence Enhancements?
Pointer contends that the Court abused its discretion when it applied
the abuse of position of trust and more than minimal planning sentence
enhancements. Pointer alleges that there was an insufficient factual
basis upon which to apply these sentencing enhancements, and that the
Court failed to consider the fact that Pointer received extensive
supervision as a Process Owner at Glenbrook which prevented him from
being in a position of trust.*fn3 However, as stated, Pointer did not
directly appeal any aspect of his sentence. The errors regarding the use
of the sentencing enhancements are nonconstitutional errors.
"Nonconstitutional errors which could have been raised on appeal but were
not, are barred on collateral review-regardless of cause and prejudice."
Arango-Alvarez v. United States. 134 F.3d 888, 891 (7th Cir. 1998)
(quoting Bontkowski v. United States. 850 F.2d 306, 313 (7th Cir.
1988))".*fn4 Therefore, Pointer's argument that the Court abused its
discretion when applying the abuse of position of private trust and more
than minimal planning sentence enhancements is not subject to review by
this Court, due to procedural default. See Belford v. United States,
975 F.2d 310, 313 (7th Cir. 1992) ("A section 2255 motion is neither a
recapitulation of nor a substitute for a direct appeal.")
2. Was Pointer Denied the Effective Assistance of Counsel?
Secondly, Pointer argues that because of his counsel's
ineffectiveness, the Court was unable to fully and accurately understand
why these sentence enhancements were inapplicable to his circumstances.
Claims of ineffective assistance of trial counsel "are properly raised
for the first time in a § 2255 motion rather than on a direct appeal."
McCleese v. United States. 75 F.3d 1174, 1178 (7th Cir. 1996), There are
two justifications for this rule. Id. First, in order to be successful,
ineffective assistance of counsel claims require supplementing the trial
record with "extrinsic evidence that illuminates the attorney's errors."
Id. (citing Bond v. U.S., 1 F.3d 631, 635 (7th Cir. 1993)). The second
justification, which is not applicable in this case, is where a
petitioner's trial counsel was also his appellate counsel because he "can
hardly be expected to challenge on appeal his own effectiveness at
trial." McCleese. 75 F.3d at 1178 (citing United States v. Taglia.
922 F.2d 413, 418 (7th Cir. 1991)). Therefore, when a defendant fails to
offer extrinsic evidence to support his claim of ineffective assistance
of counsel (and he was represented by different counsel on appeal), that
defendant must bring that claim on direct appeal or face procedural
default for failing to do so. McCleese. 75 F.3d at 1178. As stated,
Pointer did not initiate a direct appeal on any of the issues in his
case. Therefore, this Court will consider if any of the extrinsic
evidence Pointer provides indicates the ineffective assistance of
counsel. Pointer argues that his attorneys were ineffective because they
failed to clarify that his crime was facilitated by his position and that
it was a crime of opportunity that could have been committed by any
Customer Service Representative in the department. In order to succeed on
his ineffective assistance of counsel claim, Pointer must demonstrate
that his counsel's performance fell below an objective standard of
reasonableness and that this deficiency prejudiced him.
Strickland v. Washington. 466 U.S. 668, 694 (1984). Pointer must point
out and make clear to the court the specific acts or omissions forming
the basis of his claim. United States v. Trevino. 60 F.3d 333, 338 (7th
Cir. 1995) (citing Strickland. 466 U.S. at 690). Finally, all
circumstances must be evaluated to determine whether the alleged acts or
omissions were made outside of the wide range of professionally competent
assistance. Id. The petitioner must show that his attorney "made errors
so serious that counsel was not functioning as the `counsel' guaranteed
the defendant by the Sixth Amendment." Strickland. 466 U.S. at 687.
Therefore, Pointer bears a heavy burden to establish an ineffective
assistance of counsel argument, as his counsel is presumed effective.
Trevino. 60 F.3d at 338.
Based on die information in Pointer's petitions, the Government's
response, and transcripts of Pointer's three sentencing hearings in June
2002, the Court determines that there is no evidence that Pointer's
counsel performed below an objective standard of reasonableness. Further,
Pointer was not prejudiced by any of the decisions of his attorneys. In
briefs and at the sentencing hearings, Pointer's counsel clearly
articulated to the Court why they felt the abuse of position of trust
enhancement was inapplicable. This includes extensive arguments that
contended Pointer lacked the necessary discretion to be in a position of
trust, and that other Glenbrook Life employees had the same access to
checks as Pointer. Additionally, though Pointer's counsel made no
objection to the more than minimal planning sentence enhancement, Pointer
has presented no circumstances or facts that indicate that he was
prejudiced by his counsel's decision not to object to that sentence
enhancement. Further, Pointer has failed to demonstrate that his
attorneys' decision not to object to that sentence enhancement fell below
an objective standard of reasonableness or can be deemed an error so
serious as to deprive him of
his Sixth Amendment right to counsel. Strickland. 466 U.S. at 687.
Therefore, Pointer is not entitled to relief on his ineffective
assistance of counsel claim.
3. Was Pointer's Guilty Plea Voluntary?
Pointer contends that because of his counsel's ineffectiveness, his
guilty plea was not voluntary, as he did not understand the nature of all
the charges, and the consequences of his guilty plea. To demonstrate
prejudice under Strickland in the context of a guilty plea, the defendant
must show that there was a reasonable probability that, but for his
counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial. Hill v. Lockhart. 474 U.S. 52, 59 (1985). A
reasonably competent attorney considers the facts and legal consequence
of the guilty plea and communicates this analysis to the defendant.
United States v. Barnes. 83 F.3d 934, 939 (7th Cir. 1996)).
Pointer has not provided any evidence that shows that his counsel
failed to convey all of the consequences of his plea to him. During change
of plea proceedings on October 31, 2001, Pointer was given a clear and
thorough recitation of all of his rights and the consequences of his plea,
and clearly indicated that he understood the repercussions of a plea of
guilty. Further, Pointer indicated that his attorney clearly explained
all of his rights to him. Pointer has failed to produce any facts or
circumstances that would indicate that his counsel was ineffective due to
a failure to convey the consequences of a guilty plea. The record before
the Court indicates that Pointer plead guilty knowingly, voluntarily, and
with an awareness of the consequences of that plea. Pointer was fully
apprised of all his rights; therefore his counsel did not commit any
error that would indicate that but for those decisions, Pointer would
have gone to trial. Therefore, Pointer is not entitled to any relief on
the claim that his guilty plea was involuntary and was not
made with an understanding of the nature of all of the charges due
to the ineffective assistance of his counsel.
For the foregoing reasons, Pointer's § 2255 petition is dismissed
in its entirety. All other motions are moot and terminated. This case is