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Henry v. United States

December 5, 2008


The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge


This matter comes before the Court on Petitioner Jamar Henry's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1) (Petition) and his Supplemental Petition (d/e 8). For the reasons stated below, Henry's Petition and Supplemental Petition are denied.


On April 3, 2003, after a bench trial, Jamar Henry was convicted of possessing with intent to distribute 5 or more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B).*fn1 At trial, he was represented by attorneys Ralph Williams and Jon Gray Noll. Henry stipulated to the following facts. In May of 2002, a police officer saw him leave the house of his girlfriend, Michelle Granderson, and arrested him pursuant to a warrant. On his person the officer found 10.9 grams of cocaine base. Officers then searched Granderson's house and discovered .4 grams of cocaine base in a pair of pants with Henry's identification, 2.8 grams in a men's shirt, a digital scale, a spoon with cocaine residue, $800 in cash, and 87.1 grams of cocaine in a bag.*fn2 Henry stipulated to his possession of the 10.9 grams of cocaine base found on his person but denied any intent to distribute it. He also stipulated, however, that over the prior two weeks, he had bought 4 ounces of cocaine, cooked some of it into crack, and sold small quantities of it to five individuals.

The Government argued that the district court could infer Henry's intent to distribute at least 5 grams based on the total amount possessed, the digital scale and cash found in his girlfriend's home, and Henry's admission of prior distribution. Henry argued that a toxicology report and affidavits proved he personally used cocaine base, that affidavits proved he did not live at Granderson's house, and that the amount of cocaine base found in his possession was not inconsistent with personal use. The district court concluded that Henry possessed the 10.9 grams to which he admitted and the .4 grams found in the pants pocket with his identification. The district court also found that the scale, cash, and powder cocaine suggested that Henry was selling more than he was using. The district court added the 10.9 and .4 and incorrectly concluded that Henry possessed 11.4 grams of cocaine base (mathematically, the number should have been 11.3). The district court held that it did not consider the evidence sufficient to support the theory that Henry planned to consume more than 6.4 grams; thus the district court concluded that Henry intended to distribute at least 5 grams. Specifically, the district court stated:

Even if the 2.8 grams of crack that the police found in the shirt belonged to Mason, there are another 11.4 grams of crack for which to account. It is unreasonable to think that the Defendant intended to use most of that crack himself. The evidence of the Defendant's personal drug use is far too scant for the Court to find that he intended to consume more than 6.4 grams of crack. Moreover, the $800 cash and the digital scales and the inventory of 87.1 grams of powder cocaine suggests that the Defendant was selling a good deal more crack than he consumed.

Cent. Dist. Case No. 02-30056 Transcript of Proceedings on April 29, 2003 (d/e 42), at 8-9.

On September 2, 2003, the district court sentenced Henry. Henry was represented by attorneys Williams and Noll at sentencing as well. The district court found that Henry had two prior felony convictions for manufacture and delivery of 1-15 grams of cocaine in Cook County, which qualified him as a career offender. The district court found Henry's base offense level to be 37, because his offense carried a statutory maximum of life. Because Henry stipulated to the underlying facts, the district court credited him with acceptance of responsibility and thus set his total offense level at 34, providing for a sentencing range of 262-327 months. The district court sentenced Henry to 262 months, the bottom of the range.

On April 19, 2004, Henry appealed his conviction and sentence. The Seventh Circuit appointed attorney Eric M. Schwing to represent him. Henry argued that the Government offered insufficient evidence that he intended to distribute 5 or more grams of cocaine base and that the district court impermissibly placed the burden on him regarding the drug amount. He also argued that because the district court treated the Guidelines as mandatory, his sentence ran contrary to United States v. Booker, 543 U.S. 220 (2005). The Seventh Circuit affirmed Henry's conviction. United States v. Henry, 408 F.3d 930, 932 (7th Cir. 2005). Of particular importance here, the court noted that because Henry's sentence of 262 months fell under the 30-year statutory maximum for the lesser offense of possession with intent to distribute under 5 grams of cocaine base (where the defendant also had a prior drug felony conviction), proof of drug quantity was irrelevant to Henry's conviction and sentence. Id. at 934. Additionally, the Seventh Circuit noted the district court's arithmetical error, but found it insignificant. Id. at 933. Neither party had raised the issue. While the court affirmed Henry's conviction, it also ordered a limited remand pursuant to United States v. Paladino to allow the district court to reconsider his sentence. Id. at 932 (citing Paladino, 401 F.3d 471 (7th Cir. 2005)).

After the Seventh Circuit issued its opinion, Attorney Schwing filed in the district court a motion to withdraw, and the district court granted his motion. The district court appointed Attorney Babette Salus to represent Henry. On limited remand, the district court solicited position papers from the parties in lieu of holding a sentencing hearing. After reviewing the papers, the district court held that even with the additional discretion afforded by Booker, it would have imposed the same sentence.

Under Paladino, the Seventh Circuit had retained jurisdiction, and following the district court's re-sentencing, the appellate court provided both Henry and the Government the opportunity to file arguments regarding the re-sentencing decision. See Paladino, 401 F.3d at 485. Only the Government did so. The Seventh Circuit affirmed Henry's sentence November 8, 2005. Its mandate issued November 30, 2005. Henry did not file a petition for writ of certiorari before the Supreme Court.

On April 20, 2006, Henry filed a Motion to Compel (d/e 97) in the district court. He asked the district court to order his attorney, whom he identified as "Ms, Silas," to inform him of the status of his case and provide him copies of her records. Motion to Compel, at 1. He noted that the last communication he had with Attorney Salus occurred prior to the district court's decision on re-sentencing. After the district court ordered Attorney Salus and Attorney Schwing to provide Henry copies of documents in his case file, Attorney Salus indicated her belief that she was appointed to represent Henry only on the limited remand to the district court. Cent. Dist. Case No. 02-30056 Response to Defendant Jamar Henry's Notice of Non-Compliance With the Court's Order of June 15, 2006 (d/e 103), at 2.

On January 16, 2007, Henry filed the instant Petition to vacate his sentence under 28 U.S.C. § 2255. He raises seven ineffective assistance of counsel grounds.


Each of Henry's seven claims fails. While none are procedurally deficient, on the merits they do not provide grounds for habeas relief. The Court first addresses the procedural issues involved and then analyzes the merits of each claim.


Henry's Petition is timely. A one-year statute of limitations applies to petitions for ยง 2255 habeas relief. Under the statute, a petitioner ...

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