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United States v. Perry

June 11, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ROBERT PERRY, DEFENDANT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Robert Perry's ("Perry") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"). For the reasons stated below, we dismiss the motion.

BACKGROUND

On February 17, 2004, Perry, pursuant to a blind plea, entered a plea of guilty to Counts One, Two, and Three of the information. Count One charged Perry with robbery which affected commerce in violation of 18 U.S.C. §§ 1951 and 1952. Counts Two and Three charged Perry with bank robbery in violation of 18 U.S.C. § 2113(a) and (2). On August 26, 2004, Perry was sentenced by this court to be imprisoned for a term of 180 months on each of Counts One through Three to be served concurrently. Perry has exhausted his appellate rights and on October 23, 2006, Perry brought the instant motion to vacate, set aside, or correct his sentence pursuant to Section 2255.

LEGAL STANDARD

Pursuant to Rule 4(b) of the Rules Governing Section 2255 Cases in the United States District Courts, "[i]f it appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. . . ." Rule 4(b) of Rules Governing Section 2255 Cases. Section 2255 provides in part the following:

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; see also Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000)(stating that "a § 2255 motion must be granted when a defendant's 'sentence was imposed in violation of the Constitution or laws of the United States'")(quoting in part 28 U.S.C. § 2255). The relief sought pursuant to Section 2255 "is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process."

Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). A Section 2255 motion "is not a substitute for direct appeal" and "[c]laims not raised on direct appeal are barred from collateral review unless upon review [the court is] convinced that a failure to consider the issue would amount to a fundamental miscarriage of justice." Fountain, 211 F.3d at 433-34 (stating that "[i]neffective assistance of counsel claims will generally fit into this mold; they generally are not appropriate for review on direct appeal as they often attempt to rely on evidence outside the record"). A § 2255 motion should be dismissed without a hearing "if it plainly appears from the facts of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief." Dugan v. United States, 18 F.3d 460, 464 (7th Cir. 1994); see Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007)(stating that "[o]nly when the district court has determined that the § 2255 motion ought not be dismissed at that early stage does the district court have occasion to determine whether an evidentiary hearing is required")(citing Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts).

DISCUSSION

Perry contends that he received ineffective assistance of counsel before this court alleging: (1) that his counsel failed to conduct an adequate investigation surrounding the charges against him and that his counsel did not object to the circumstances surrounding his arrest; (2) that his counsel did not move for a suppression hearing; and (3) that he pled guilty based on defective advice from counsel. The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. To establish ineffective assistance of counsel, a defendant must show that: "(1) his counsel's performance fell below an objective standard of reasonableness; and (2) the deficient performance so prejudiced his defense that it deprived him of a fair trial." Fountain, 211 F.3d at 434.

I. Previous Motions for Appointment of Counsel Before Court

We note that on May 4, 2004, this court held a hearing as to Perry's motion for new appointed counsel. Based on the evidence presented at the hearing by both Perry and his counsel, we found no evidence that the representation by Perry's attorney was in any way deficient or that Perry's counsel's representation fell below the standards for a reasonable attorney. (Min. Ord. 5/04/2004). As such, we granted counsel's motion to withdraw solely based upon Perry's indication that he could no longer work with his counsel, noting that new counsel was required in order to ensure that Perry's right to counsel was not in any way impaired by a conflict between himself and his attorney. (Min. Ord. 5/04/2004). Further, on June 21, 2004, this court held another hearing as to Perry's motion for new appointment of counsel. Once again, based on the evidence presented at the hearing by both Perry and his counsel, we found "absolutely no evidence that the representation by defendant Perry's attorney . . . was in any way deficient or that his representation fell below the standards for a reasonable attorney" and appointed new counsel "solely based upon defendant Perry's indication that he has irreconcilable differences with counsel that has ...


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