United States District Court, N.D. Illinois, Eastern Division
August 24, 2005.
UNITED STATES OF AMERICA,
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM OPINION AND ORDER
This case is before the court on the petition of Lonnie
Buchanan for a writ of habeas corpus pursuant to
28 U.S.C. § 2255. For the reasons stated below, the petition is denied.
A grand jury returned a five-count indictment against Lonnie
Buchanan and a co-defendant on November 2, 2000. Count One
charged both defendants with conspiracy to distribute heroin and
crack cocaine in violation of 21 U.S.C. § 846. Count Two charged
Buchanan's co-defendant with distribution of heroin in violation
of 21 U.S.C. § 841(a)(1). Counts Three, Four and Five charged
both defendants with distribution of heroin and crack cocaine,
all in violation of 21 U.S.C § 841(a)(1). Following a jury trial
commencing on September 17, 2001, the jury returned a guilty
verdict against both defendants on all counts of the indictment.
Buchanan was sentenced to a 151-month term of imprisonment on
February 26, 2002.
Buchanan, with his co-defendant, appealed his conviction to the
United States Court of Appeals for the Seventh Circuit.
Defendants' attorneys filed a consolidated Anders brief with
the Seventh Circuit asserting that they could not find a
nonfrivolous basis for the appeal and seeking to withdraw from
their representations of defendants. See Anders v. California,
386 U.S. 738 (1967). On March 14, 2003, the Seventh Circuit granted the
motions to withdraw and dismissed the appeal. See United States
v. Omar Fazal and Lonnie Buchanan, Nos. 02-1330 & 02-1756 (7th
Cir. Mar. 14, 2003). Buchanan filed a petition for a writ of
certiorari, which was denied on October 6, 2003. See Buchanan v.
United States, 124 S. Ct. 171 (2003).
On August 17, 2004, Buchanan filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255. In his
motion, Buchanan challenges the jurisdiction of the federal
courts, asserts an ineffective assistance of counsel claim, and
argues that the district court erred when it allowed custodial
statements of non-testifying co-defendants to be heard at trial,
when it did not find that Buchanan played a minor role in the
offenses, and when it found that Buchanan participated in a drug
conspiracy although he was not found in physical possession of
Collateral relief under 28 U.S.C. § 2255, the federal habeas
corpus statute, is available only in limited circumstances. The
statute provides in relevant 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 or 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. Such relief is therefore limited to "an error
of law that is jurisdictional, constitutional, or constitutes a
fundamental defect which inherently results in a complete
miscarriage of justice." Bishchel v. United States,
32 F.3d 259
, 263 (7th Cir. 1994), quoting Borre v. United States,
940 F.2d 215
, 217 (7th Cir. 1991). If the reviewing court determines
that such defect exists in the judgment or sentence, it "shall
vacate and set the judgment aside and shall discharge the prisoner or re-sentence him or grant a new trial or
correct the sentence as may appear appropriate."
28 U.S.C. § 2255.
I. Federal Jurisdiction Is Appropriate Because Buchanan
Violated a Federal Statute
Buchanan alleges that the government did not have jurisdiction
to prosecute him in federal court. However, it has long been
understood that the federal and states courts have concurrent
jurisdiction over certain matters. See United States v. Lanza,
260 U.S. 377, 382 (1922) (finding that "an act denounced as a
crime by both national and state sovereignties is an offense
against the peace and dignity of both and may be punished by
each"). Here, Buchanan was indicted, tried, and found guilty of
violating federal narcotics statutes. Thus, Buchanan's allegation
of no federal jurisdiction is without merit.
II. Buchanan's Trial Counsel Provided Effective Assistance of
Buchanan argues that he was denied his Sixth Amendment right to
effective assistance of counsel. The standard for reviewing a
claim of ineffective assistance of counsel was set forth by the
United States Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984). Strickland applies a two-prong analysis: (1)
whether his counsel's deficiencies prejudiced his defense (the
"prejudice" prong), and (2) whether counsel's performance fell
below an objective standard of reasonableness (the "performance"
prong). Id. at 688-692.
The prejudice prong requires Buchanan to "show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been different."
Id. at 695. A court is not required to determine whether
counsel's performance was deficient before examining the
prejudice prong. Id. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should
be followed." Id.
In order to satisfy the performance prong, Buchanan must
specifically identify acts or omissions that form the basis of
his claim of ineffective assistance. Id. at 690. Based on the
totality of the circumstances, the court must then determine
whether the identified acts and omissions fall outside the range
of professionally competent assistance. Id. Courts must begin
this analysis with a strong presumption that counsel rendered
reasonably effective assistance. See United States v. Morales,
964 F.2d 677, 683 (7th Cir. 1992). A defense attorney's
performance is acceptable when he chooses a professionally
competent strategy that secured for the accused the benefit of
the adversarial process. See Kokoraleis v. Gilmore,
131 F.3d 692, 696 (7th Cir. 1997). Under Strickland, courts should not
second-guess counsel with the benefit of hindsight and can
require only "a professionally competent defense, not . . . the
best possible defense." Holman v. Gilmore, 126 F.3d 876, 883
(7th Cir. 1997). Additionally, "a lawyer's decision to call or
not to call a witness is a strategic decision generally not
subject to review." United States v. Williams, 106 F.3d 1362,
1367 (7th Cir. 1997). If the attorney's strategic decisions were
sound when they were made, these decisions cannot support a claim
of ineffective assistance of counsel. See United States v.
Kozinski, 16 F.3d 795, 813 (7th Cir. 1994).
Buchanan first maintains that his trial counsel was ineffective
for failing to pursue subpoenas to cross-examine witnesses and
failing to interview witnesses. He alleges that, but for his
attorney's failure to pursue this witness testimony, the outcome
of the trial would have been different. Buchanan also maintains
that trial counsel was ineffective because counsel failed to
obtain the grand jury transcripts, which Buchanan alleges would
have been beneficial to his case; counsel did not object to the jury instructions; counsel failed
to object to enhancements at sentencing; counsel failed to do
adequate research; and counsel did not pursue information in
possession of the prosecution.
Buchanan does not offer any evidence to support his allegation
that the outcome of his trial was prejudiced by his attorney's
alleged errors. Buchanan does not offer any affidavits as to what
the grand jury transcripts or witness testimony would have
revealed. Nor does he state how he was prejudiced by counsel's
failure to object to the jury instructions. Bare allegations,
standing alone, are insufficient to establish ineffective
assistance of counsel. See United States v. Jordan,
870 F.2d 1310, 1318 (7th Cir. 1989). Additionally, given the deference due
lawyers' strategic decisions under Strickland, the performance
of Buchanan's counsel does not fall outside the realm of
reasonably competent representation. Without contrary evidence
such as affidavits of the witnesses' purported testimony, we
follow the Seventh Circuit's conclusion that "overwhelming
evidence amply supports the conviction? of . . . Buchanan."
United States v. Omar Fazal and Lonnie Buchanan,
61 Fed. Appx. 289, 292 (7th Cir. 2003).
Given the lack of evidence of prejudice to the outcome of
Buchanan's case and the strong presumption of reasonably
effective counsel, we find Buchanan's claim of ineffective
assistance to be without merit.
III. Buchanan Procedurally Defaulted Because Allegations of
Reversible Error Were Not Addressed On Direct Appeal
Buchanan alleges that the district court committed reversible
error when it allowed custodial statements of non-testifying
co-defendants to be heard at trial, when it did not find that
Buchanan played a minor role in the offenses, and when it found
that Buchanan participated in a drug conspiracy when he was not
found in possession of any drugs. However, these allegations were not among the laundry list of issues addressed on appeal by
Buchanan's attorney in his Anders brief or by Buchanan in his
Rule 51(b) response filed pursuant to the Federal Rules of
A defendant may not use a section 2255 petition as a
"recapitulation of," or "a substitute for," a direct appeal.
McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996)
(internal quotation marks omitted). "An issue not raised on
direct appeal is barred from collateral review absent a showing
of both good cause for the failure to raise the claims on
direct appeal and actual prejudice from the failure to raise
those claims, or if a refusal to consider the issue would lead to
a fundamental miscarriage of justice." Prewitt v. United
States, 83 F.3d 812, 816 (7th Cir. 1996); see also Fountain v.
United States, 211 F.3d 429, 432 (7th Cir. 2000) ("Claims not
raised on direct appeal are barred from collateral review unless
upon review, [the court has] been convinced that a failure to
consider the issue would amount to a fundamental miscarriage of
justice.") Additionally, this "cause and prejudice" standard
requires the defendant to establish that "some objective factor
external to the defense" impeded his ability to raise the issue
sooner, Coleman v. Thompson, 501 U.S. 722, 753 (1991) (internal
quotation marks omitted), and that the alleged error "worked to
his actual and substantial disadvantage, infecting his entire
trial with error of constitutional dimensions." United States v.
Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
Buchanan does not assert either good cause or prejudice for his
default, nor does he allege a fundamental miscarriage of justice.
Therefore, his allegations of reversible error are procedurally
defaulted. Even if he had raised these issues on direct appeal, we would
conclude that Buchanan's allegations of error are without merit.
Relief is limited to "an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect which
inherently results in a complete miscarriage of justice."
Bishchel v. United States, 32 F.3d 259, 263 (7th Cir. 1994),
quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir.
Buchanan alleges that the district court erred in allowing
custodial statements of non-testifying co-defendants to be heard
at trial. However, Buchanan has not identified what custodial
statements of non-testifying co-defendants were heard since there
was only one co-defendant in the case and that person did not
testify. Buchanan may be referring to statements recorded over a
wiretap his co-defendant's phone, which the court admitted as a
co-conspirator statement under Federal Rule of Evidence
801(d)(2)(E). Buchanan has not cited any way in which he was
prejudiced by the district court's alleged error in allowing the
statements to be heard at trial. Buchanan has not established
that the court's supposed error resulted in a "complete
miscarriage of justice." Additionally, the Seventh Circuit stated
that "given the evidence against the defendant?, we also agree
with counsel that it would be frivolous to argue that the
district court erred in admitting coconspirator statements based
on the government's alleged failure to establish a conspiracy by
a preponderance of the evidence." Fazal, 61 Fed. Appx. at 292.
Buchanan also alleges that the district court erred in not
finding, at sentencing, that he played a minor role in the
offenses. Buchanan argues that he was merely present during drug
deals. However, at sentencing, the court found that Buchanan's
action and knowledge of the offense were too significant to
qualify for a reduction to the offense level. "Errors in the
implementation of the Sentencing Guidelines are generally not
cognizable in a collateral attack." Buggs v. United States, 153 F.3d 439, 443 (7th Cir. 1998).
Therefore, Buchanan's role in the offenses is not an issue of
constitutional dimensions and may not be raised in this
Finally, Buchanan alleges that the district court erred in
finding that he participated in a drug conspiracy. He argues that
since he was never caught in possession of drugs, he cannot be
found guilty of possession with the intent to distribute. We
agree with the Seventh Circuit's statement that "overwhelming
evidence amply supports the conviction? of . . . Buchanan."
Fazal, 61 Fed. Appx. at 292. Thus, even assuming that these
claims of error were not procedurally defaulted, Buchanan's
allegations are without merit.
For the foregoing reasons, the petition for a writ of habeas
corpus is denied. It is so ordered.
© 1992-2005 VersusLaw Inc.