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Clark v. United States

November 30, 2007

LEONARD CLARK, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Before the Court is pro se Petitioner Leonard Clark's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Clark's Section 2255 motion.

BACKGROUND

In a superceding indictment, the government charged Clark, Juan Cruz, and Jose Olaquez -- along with six other members of a Chicago street gang called the West Town Latin Kings -- with conspiracy to distribute and to possess with intent to distribute in excess of 50 grams of cocaine base in the form of crack cocaine, in violation of Title 21, United States Code, Section 846 (Count I). The government also charged Clark with distribution of cocaine base in the form of crack cocaine, in violation of Title 21, United States Code, Section 841(a)(1) (Counts III, IV, & V). On April 13, 2004, Clark pleaded guilty to all counts of the indictment against him without the benefit of a plea agreement. The Court subsequently sentenced Clark to 360 months imprisonment. Clark appealed his sentence and the Seventh Circuit affirmed the Court's sentencing determinations. See United States v. Clark, 191 Fed.Appx. 491 (7th Cir. 2006).

The Seventh Circuit discussed the following facts concerning Clark and the charged conspiracy:

The conspiracy lasted from 1998 through 2003, but we are concerned only with a short window between February 2001 and July 2001 when Clark and Cruz led the conspiracy and Olaquez participated. Clark was in charge, he held the title of "Inca," and Cruz was his second-in-command, with the title "Cacique." The gang sold crack on a daily basis during this stretch -- at least fifteen members selling regularly -- and held meetings to discuss sales and security. Clark and Cruz led the meetings. Every so often members of the gang sold "Nation Packs," baggies with ten rocks of crack, and the proceeds went to the gang. Co-defendant Angel Serrano admitted his involvement in selling more than 1.5 kilograms of crack during the time Clark and Cruz were in charge. During the same time, co-defendant David Saez dealt between 500 grams and 1.5 kilograms of crack. Co-defendants Martinez, Enriquez, and Mendez also admitted dealing crack during this time.

Clark and Cruz pleaded guilty. At sentencing the district judge found that because Clark and Cruz led the conspiracy, even if only for a short time, they could be held responsible for more than 1.5 kilograms of crack, since their coconspirators confessed to moving at least that much crack. That quantity of crack, combined with their criminal histories, put each man in an advisory sentencing guidelines range of 360 months to life. The judge sentenced each to 360 months for his role in the conspiracy.

United States v. Clark, 191 Fed.Appx. 491, 494 (7th Cir. 2006).

LEGAL STANDARD

Relief under Section 2255 "is reserved for extraordinary situations." Hays v. United States, 397 F.3d 564, 566 (7th Cir. 2005). A district court will only grant a Section 2255 motion to vacate, set aside or correct a sentence if the petitioner establishes "that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Id. at 566-67 (citations and internal quotations omitted). A Section 2255 motion is not a substitute for a direct criminal appeal -- it is not the means by which a convicted defendant may appeal the same claims a second time. See Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003); see also Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (Section 2255 motion is "neither a recapitulation of nor a substitute for a direct appeal.") (citation omitted). Accordingly, if a Section 2255 petitioner does not raise a claim in his direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, see Fuller v. United States, 398 F.3d 644, 648 (7th Cir. 2005), that enforcing the procedural default would lead to a "fundamental miscarriage of justice," see Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006), or a change of circumstances involving facts or law. See Varela, 481 F.3d at 935-36. Because claims of ineffective assistance of counsel usually involve evidence outside the record, these claims may be brought for the first time in Section 2255 motions. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Ballinger v. United States, 379 F.3d 427, 429-30 (7th Cir. 2004).

ANALYSIS

Construing Clark's pro se Section 2255 motion liberally, see Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006), Clark claims that he was denied constitutionally effective assistance of trial and appellate counsel.*fn1 See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective assistance of counsel under Strickland, Clark must show (1) his attorney's performance "fell below an objective standard of reasonableness," and (2) "but for counsel's unprofessional errors the result of the proceeding would have been different." Id. at 688, 694. If Clark fails to make a proper showing under one of the Strickland prongs, the Court need not consider the other. See id. at 697 ("In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant ...."); see also Amerson v. Farrey, 492 F.3d 848, 851 (7th Cir. 2007). "[B]ecause counsel is presumed effective, a party bears a heavy burden in making a winning claim based on ineffective assistance of counsel." Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006) (citation omitted).

In the context of a guilty plea, the Supreme Court has articulated that "a defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received was constitutionally ineffective." Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quotations omitted). In this context, under the prejudice prong of the Strickland standard, Clark must show "that there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial." Bethel v. United States, 458 F.3d 711, 716-17 (7th Cir. 2006) (citing Hill, 474 U.S. at 57-59).

I. Trial Counsel

In his Section 2255 motion, Clark contends that his trial counsel was constitutionally ineffective because: (1) counsel failed to understand the nature of charges against him and the effect of the sentencing guidelines in relation to his guilty plea; (2) Clark's entry of his guilty plea was unknowingly and unintelligently made due to trial counsels' failure to advise him that he could be sentenced on the advisory system contemplated in Booker; (3) Clark would not have entered a guilty plea if his trial counsel had informed him that under the advisory system the Court could consider non-factual, non-relevant conduct*fn2 ; (4) counsel was ineffective because she never informed Clark that he had the option of withdrawing his guilty plea upon her failure to inform him of the effects of Blakely and Booker; and (5) counsel was ineffective because she failed to negotiate a guilty plea to just one count of the indictment.

The Court turns to Clark's plea hearing before examining Clark's claims. On April 13, 2004, Clark pleaded guilty to four counts of the superseding indictment as follows:

The Court: Mr. Clark, before I can accept your plea, I have to determine several things. I have to determine that you are competent to plead guilty at this time; that you have had the assistance of counsel; that you understand what your trial rights are and that you will be waiving them by pleading guilty this morning; that you understand the nature of the charges against you; that your plea is a voluntary act on your part; and, that there is a sufficient factual basis for your plea. Do you understand that, sir?

Mr. Clark: Yes, ma'am.

The Court: If at any point this morning, Mr. Clark, you feel like you need additional time to talk to your attorney, please let me know and I am happy to interrupt the proceedings or give you whatever time you need. Okay?

Mr. Clark: Yes, ma'am.

***

The Court: Have you had enough time to talk to your attorney about this matter?

Mr. Clark: Yes ma'am.

The Court: Are you satisfied with Ms. Foley's advice and efforts on your behalf, sir?

Mr. Clark: Yes, ma'am.

The Court: You're offering to plead guilty to Counts 1, 3, 4, and 5 of the superseding indictment. Have you read Counts 1, 3, 4, and 5 of the superseding indictment?

Mr. Clark: Yes, ma'am.

The Court: Has your lawyer explained to you the nature of the charges in those counts?

Mr. Clark: Yes, ma'am.

The Court: Mr. Clark, do you understand the nature of the charges in Counts 1, 3, 4 and 5 of ...


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