The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Presently before the Court is Petitioner's, Jermaine Price's,
pro se Motion to Vacate, Set Aside or Correct his Sentence
pursuant to 28 U.S.C. § 2255.
In November 2002, Petitioner and twelve co-defendants were
charged in a grand jury indictment with a scheme to defraud
retailers by presenting counterfeit and stolen checks and
presenting false identification cards to fraudulently confirm
that they were the individuals whose names appeared on the
counterfeit checks. On March 2, 2004, pursuant to a plea
agreement, Petitioner pled guilty to Count Two, wire fraud, of
the superseding indictment. In his plea, Petitioner admitted to
the following facts:
Beginning on or about July 1, 1998, and continuing
until at least November 6, 2002, . . . defendant
along with [co-defendants], knowingly devised,
intended to devise, and participated in a scheme to
defraud Target Stores and stores that utilized
Certegy and Telecheck check clearing services,
including Gap, Sears, T.J. Maxx, Carson Pirie Scott,
Marshalls, and others, and to obtain money and
property, by means of materially false and fraudulent
pretenses and representations, and through the
transmission of wire communication, in interstate
commerce, certain signs, signals and sound, namely
communications through telephone lines, in violation
of Title 18, United States Code, Sections 1343 and 2. Specifically, defendant went to various merchants
including Marshall Fields and Target, where he used
false identification documents to pass counterfeit
and stolen checks for merchandise. After being
purchased, the merchandise was returned for cash,
which the defendant would share with other
individuals involved in the scheme, including
Cocinette Smith. The defendant traveled to Indiana
with members of the scheme to obtain fraudulent
identification documents that were used to pass the
counterfeit and stolen checks.
As a result of defendant's conduct, he caused a loss
of approximately $140,892.40.
Defendant passed counterfeit checks at the following
retail establishments in the Chicago area: Pep Boys,
Sportmart, Circuit City, Gap, Inc., Carson Pirie
Scott, Sephora, Borders Books, Mens Warehouse, The
Casual Male, Lerner New York, Nine West, Work N Gear,
Sport Authority, Target Corporation, as well as
Petitioner also reserved his right to appeal the validity of his
plea or his sentence in the plea agreement.
On June 16, 2004, Petitioner was sentenced to 21 months'
incarceration. In calculating Petitioner's sentence, the Court
determined that pursuant to U.S.S.G. § 2F1.1(a), the base offense
was level six. The offense level was increased by seven levels,
pursuant to U.S.S.G § 2F1.1(b)(1)(H), because the amount of loss
involved for which the Petitioner was deemed accountable was more
than $120,000 but less than $200,000. The offense level was also
increased by two levels, pursuant to U.S.S.G. § 2B1.1(b)(2),
because the offense involved a scheme to defraud more than one
victim. The resulting total offense level was fifteen. Over
Petitioner's objection, the Court found that Petitioner was not
entitled to a two-level reduction for acceptance of
Petitioner raises two arguments: (1) his sentence was increased
in violation of Blakely v. Washington, 124 S. Ct. 2531
(Blakely), and United States v. Booker, 125 S. Ct. 738
(Booker); and (2) ineffective assistance of counsel. Section 2255 reads, in pertinent part:
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.
28 U.S.C. § 2255. This collateral relief is only available where
there was "an error of law that is jurisdictional,
constitutional, or constitutes a `fundamental defect which
inherently results in a complete miscarriage of justice.'"
Bischel v. United States, 32 F.3d 259
, 263 (7th Cir. 1994),
quoting Borre v. United States, 940 F.2d 215
, 217 (7th Cir.
1992). The district court must review the record and draw all
reasonable inferences in favor of the Government. See Carnine v.
United States, 974 F.2d 924
, 928 (7th Cir. 1992). However,
Petitioner filed this petition pro se; therefore, his petition
is entitled to a liberal reading. See Haines v. Kerner,
404 U.S. 519
, 520 (1972).
Petitioner argues that the increases in his base level based on
the amount of loss and a scheme to defraud more than one person
violated his Sixth Amendment rights, citing Blakely and
Booker. However, the holding in Booker is not retroactively
applied and would not apply to Petitioner. See McReynolds v.
United States, 397 F.3d 479 (7th Cir. 2005).
Petitioner also argues that his counsel was ineffective for
failing to raise an Apprendi claim and Fifth and Sixth
Amendment claims at sentencing and for failing to file an appeal.
Ineffective assistance of counsel claims not raised on direct
appeal are not procedurally defaulted. See Massaro v. United
States, 123 S. Ct 1690, 1694 (2003). Claims of ineffective
assistance of counsel are reviewed under the two-prong test
delineated in Strickland v. Washington, 466 U.S. 668 (1984) (Strickland). Under this test, a defendant
must demonstrate both: (1) that counsel's performance was
deficient and (2) that the deficient performance prejudiced the
defendant. See Strickland, 466 U.S. at 688. The deficiency
prong requires a defendant to demonstrate that the representation
he received was objectively unreasonable considering all of the
circumstances. Counsel's conduct is strongly presumed to satisfy
professional standards. See Strickland, 466 U.S. at 688-89. To
demonstrate actual prejudice, a defendant must show that
"counsel's errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is unreliable." Strickland,
466 U.S. at 687. "The defendant must show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 696.
Petitioner's first ground for ineffective assistance of counsel
fails because Petitioner has failed to demonstrate counsel's
performance was deficient. Petitioner concedes in his petition
that any objections citing to Apprendi or the Fifth and Sixth
Amendment at sentencing, which was prior to the ruling in
Blakely on June 24, 2004, would have been frivolous.
Accordingly, Petitioner's counsel acted reasonably in not raising
Apprendi or Fifth and Sixth Amendment claims at the time of
Petitioner also argues that his counsel was ineffective for
failing to file an appeal in light of the holding in Blakely
that was issued the week following his sentence.
In the instant case, Petitioner does not contend that he asked
counsel to file an appeal and counsel failed to file such appeal.
Under that scenario, counsel's failure to file an appeal would
constitute ineffective assistance of counsel. See Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000) (Flores-Ortega).
Instead, Petitioner contends that counsel was ineffective for
failing to consult with him about the filing of an appeal in light of the Blakely
ruling within the applicable appeal time-frame. Under this
scenario, "counsel has a constitutionally imposed duty to consult
with the defendant about an appeal when there is reason to think
either (1) that a rational defendant would want to appeal . . .
or (2) that this particular defendant demonstrated to counsel
that he was interested in appealing." Flores-Ortega,
528 U.S. at 480. The court must take into consideration all the
information that defense knew or should have known in making this
decision. Flores-Ortega, 528 U.S. at 480. Relevant factors
include whether the conviction follows a trial or guilty plea,
whether the defendant received the sentence for which he
bargained, and whether the plea expressly reserved or waived some
or all appeal rights. "Only by considering all relevant factors
in a given case can a court properly determine whether a rational
defendant would have desired an appeal. . . ." Flores-Ortega,
528 U.S. at 480.
Here, Petitioner pled guilty and received a sentence consistent
with the Government's position as set forth in the plea
agreement. However, the plea agreement also reserved the right of
Petitioner to appeal his plea and sentence. Importantly, during
the 10-day period for an appeal to be filed following
Petitioner's sentence, the Supreme Court issued its ruling in
Blakely. In Blakely, the Court held that "any fact [other
than the fact of a prior conviction] that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt" as
applied to a state sentencing scheme essentially identical to the
Federal Sentencing Guidelines. Blakely, 124 S. Ct. at 2536.
Based on the Blakely holding, Petitioner contends that an
appeal should have been filed challenging the Court's increased
sentence based on the amount of loss and a scheme to defraud more
than one person. Under the relevant factors in this case, a
rational defendant would have desired an appeal; and it was
unreasonable for defense counsel not to consult with Petitioner about an appeal. See
Flores-Ortega, 528 U.S. at 481 ("We expect that courts
evaluating the reasonableness of counsel's performance using the
inquiry we have described will find, in the vast majority of
cases, that counsel had a duty to consult with the defendant
about an appeal.")
As to the prejudice prong of the ineffective assistance of
counsel test, under the circumstances present in the instant
case, "a defendant must demonstrate that there is a reasonable
probability that, but for counsel's deficient failure to consult
him about an appeal, he would have timely appealed."
Flores-Ortega, 528 U.S. at 484. A pro se defendant need not
demonstrate that his hypothetical appeal might have merit before
any advocate has ever reviewed the record in search of
potentially meritorious grounds for appeal. Rather, a defendant
must demonstrate that, but for counsel's deficient conduct, he
would have appealed. See Flores-Ortega, 528 U.S. at 486.
Here, Petitioner contends that he wanted to appeal his sentence
during the applicable time to appeal and argues in his present
motion some of the same grounds that would have been included in
his appeal had he been consulted and had the appeal been filed.
Petitioner has sufficiently demonstrated that he ...