United States District Court, S.D. Illinois
October 18, 2005.
BRAD TAYLOR, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: G. MURPHY, Chief District Judge
MEMORANDUM AND ORDER
On April 9, 2004, Brad Taylor filed the instant motion pursuant
to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by
a person in federal custody (Doc. 1). The Government responded to
the motion on November 8, 2004 (Doc. 7), and Taylor filed a reply
Pursuant to Rule 8(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts,
If [a 2255] motion has not been dismissed at a
previous stage in the proceeding, the judge, after
the answer is filed and any transcripts or records of
prior court actions in the matter are in his
possession, shall, upon a review of those proceedings
and of the expanded record, if any, determine whether
an evidentiary hearing is required. If it appears
that an evidentiary hearing is not required, the
judge shall make such disposition of the motion as
The Seventh Circuit has noted that "[n]o hearing is required in
a section 2255 proceeding if the motion raises no cognizable
claim, if the allegations in the motion are unreasonably vague,
conclusory, or incredible, or if the factual matters raised by
the motion may be resolved on the record before the district
court." Oliver v. United States, 961 F.2d 1339
, 1343 n. 5
(7th Cir. 1992), citing United States v. Frye, 738 F.2d 196
(7th Cir. 1984).
In this case, the Court finds that the factual matters raised by
the motion may be resolved on the record, and the motion raises
no cognizable claim. Accordingly, the Court will resolve the
motion without a hearing.
A federal grand jury returned a multi-count indictment against
Brad Taylor and others on December 6, 2000. (See Doc. 1 in
Cause No. 00-CR-40101-GPM.) Two superseding indictments were
filed after the initial indictment. (See Docs. 37, 54 in
On March 6, 2001, a federal grand jury returned a multi-count
third superseding indictment (Doc. 158). Brad Taylor was charged
in Count 1 with conspiring to distribute and possess with intent
to distribute more than five (5) grams of a mixture and substance
containing cocaine base ("crack cocaine") and cocaine. Count 12
charged Taylor with knowingly and intentionally distributing
cocaine on September 14, 2000.
The undersigned District Judge presided over the jury trial of
this matter from April 10-12, 2001. The jury found Taylor guilty
of both counts and made a specific finding beyond a reasonable
doubt that the conspiracy involved more than 5 grams of cocaine.
This Court subsequently imposed a sentence of 377 months
imprisonment, 8 years of supervised release, a $10,000 fine, and
a $500 special assessment. (See Doc. 354 in Cause No.
00-40101-GPM). Taylor appealed, and the Seventh Circuit affirmed
the conviction and sentence. See United States v. Randall Moss,
et al., Nos. 01-3174, 01-3266, 01-3267, 2003 WL 173692 (7th
Cir. Jan. 23, 2003). The United States Supreme Court denied
certiorari. See Taylor v. United States, 538 U.S. 1067 (2003).
Taylor argues that his sentence should be vacated, set aside,
or corrected for the following four reasons: (1) trial counsel
gave ineffective assistance regarding Petitioner's decision not
to accept a plea offer and proceed to trial; (2) counsel was
ineffective for failing to keep Petitioner informed of important
developments in the course of prosecution that would affect
Petitioner's decision to plead guilty or stand trial; (3) counsel
was ineffective for failing to object when the sentencing court
failed to conduct independent findings on drug type and quantity
required by the Sentencing Guidelines and no particularized
examination of his specific role in the offense; and (4) the
United States District Court was without jurisdiction to impose
sentence upon Petitioner pursuant to the Sentencing Reform Act of
1984, which was part of the Comprehensive Crime Control Act of
1984, Public Law 98-437; 98 Stat. 1837, which expired on
September 30, 1985, and had no further effect as law. (See Doc.
Title 28, United States Code, Section 2255 provides that "[a]
prisoner in custody under sentence of the 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." Thus,
collateral relief is available to Taylor only if any legal error
in his conviction is "jurisdictional, constitutional, or is a
fundamental defect which inherently results in a complete
miscarriage of justice." Oliver, 961 F.2d at 1341, quoting
Haase v. United States, 800 F.2d 123, 126 (7th Cir. 1986).
In other words, a Section 2255 motion does not serve as a
substitute for a direct appeal. The United States Supreme Court
has held that a defendant can raise a claim for ineffective
assistance of counsel in a collateral proceeding even though he
could have, but did not, raise the claim on direct appeal. See
Massaro v. United States, 538 U.S. 500, 508-509 (2003).
To establish a claim of ineffective assistance of counsel,
Taylor must show that his counsel's "performance was deficient,
which means that counsel's errors were so serious that they
deprived [him] of `counsel' within the meaning of the Sixth
Amendment, and that the deficient performance prejudiced him,
which means that counsel's errors were so serious that they
deprived him of a fair trial with reliable results." Mahafey v.
Schomig, 294 F.3d 907, 918 (7th Cir. 2002), citing
Strickland, 466 U.S. at 687. The Seventh Circuit has noted that
"[r]egardless of when it is made, because counsel is presumed
effective, a party bears a heavy burden in making out a winning
claim based on ineffective assistance of counsel." United States
v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995).
There is no merit to the claims that trial counsel was
ineffective. The Government maintains in its response that no
written plea agreement was ever offered to Taylor. The Government
was certainly under no obligation to offer a plea agreement, and
Taylor has not offered any facts to show that he would have
received a more favorable sentence even if he had entered an open
plea of guilty. In fact, Taylor's status as a career offender
belies any such argument. His assertions that he would have
considered pleading guilty and that he would have received a
lesser sentence are mere conjecture. The mere possibility of
prejudice is insufficient to demonstrate actual prejudice. See
Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996).
And, because Taylor has continued to proclaim his innocence at
every stage of the trial, at sentencing, and even in his
collateral attack (see Government's response Doc. 7 for
specific examples), his claim now that his lawyer should have
talked him into pleading guilty is without merit. See, e.g.,
Sanders v. United States, 341 F.3d 720 (8th Cir. 2003). The
letter from Taylor's trial counsel, John Delaney, to the Court
explaining his fee tells the Court that Taylor insisted on going
to trial rather than exploring plea negotiations. The other arguments that trial counsel was ineffective likewise
fail. Taylor claims that counsel failed to inform him of
important developments in his case. This argument is also flawed
because Taylor continues to maintain his innocence. Moreover, as
the Government points out, the § 851 enhancement did not affect
the ultimate sentence in this case. See 21 U.S.C. § 851. The
amount of relevant conduct attributed to Taylor pushed up his
sentencing guideline range, not the § 851 enhancement, which only
imposed a mandatory minimum of 10 years. Finally, the enhancement
was filed the day before trial began. The Government has produced
a letter from attorney Delaney which was sent to Taylor on the
very same day. Taylor is simply wrong that his attorney failed to
keep him up-to-date.
Taylor's next claim goes to the Court's calculation of his
relevant conduct. This argument also fails because Taylor's
counsel did contest the relevant conduct, and the Court resolved
the objections at an evidentiary hearing. Also, the Seventh
Circuit held on direct appeal that the Court properly calculated
Taylor's relevant conduct. See United States v. Randall Moss, et
al., Nos. 01-3174, 01-3266, 01-3267, 2003 WL 173692 at *2
(7th Cir. Jan. 23, 2003).
Finally, Taylor claims that the Court lacked jurisdiction to
sentence him. Most fatal to his claim is the fact that he did not
raise this argument on direct appeal. There are three types of
issues that cannot be raised in a motion brought pursuant to
Section 2255: (1) issues that were raised on direct appeal,
absent a showing of changed circumstances; (2) nonconstitutional
issues that could have been but were not raised on direct appeal;
and (3) constitutional issues that were not raised on direct
appeal, absent a showing of either good cause for the procedural
default and actual prejudice stemming from the alleged error, or
that the district court's failure to consider the issue would
result in a fundamental miscarriage of justice. See McCleese v.
United States, 75 F.3d 1174, 1177 (7th Cir. 1996); Degaglia v. United States, 7 F.3d 609, 611 (7th Cir.
1993); Belford v. United States, 975 F.2d 310, 313 (7th
Cir. 1992), reversed on other grounds, Castellanos v. United
States, 26 F.3d 717 (7th Cir. 1994). Taylor has offered no
reason why he did not raise this claim earlier. And, as several
other courts have found (see cases cited in Government's
response Doc. 7), this convoluted jailhouse argument lacks any
For the foregoing reasons, the motion for relief pursuant to
28 U.S.C. § 2255 is DENIED, and this action is DISMISSED with
prejudice. The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
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