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Rush v. United States

March 25, 2009

GEORGE S. RUSH, III, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on the Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner George S. Rush, III (Doc. 1). The Government has responded to the motion, and Petitioner has replied. For the following reasons, the Court DENIES the Motion.

BACKGROUND

I. Procedural Posture

On April 6, 2004, Petitioner George S. Rush, III (Rush) was indicted by a federal grand jury on three counts of distribution of less than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C). On June 24, 2004 Rush pled guilty to all of the charges. This Court sentenced Rush on September 24, 2004, to a term of 235 months in prison, six years of supervised release, a fine of three thousand dollars and a three hundred dollar special assessment. Rush filed a notice of appeal on September 28, 2004. The Seventh Circuit Court of Appeals vacated the judgment in light of United States v. Booker, 534 U.S. 220 (2005), and remanded for resentencing. This Court imposed the same sentence after remand with the exception of reducing Rush's fine from three thousand to one thousand five hundred dollars. Rush appealed again. The Seventh Circuit dismissed the appeal on August 3, 2006. Rush filed a petition for writ of certorari. The Supreme Court denied the petition on June 29. 2007. Rush timely filed the instant habeas petition on June 25, 2008. Rush presents two grounds for relief:

(1) his counsel was ineffective in allowing him to enter a guilty plea that was unknowing and involuntary, and (2) his sentence should be recalculated based upon Amendment 709 of the Sentencing Guidelines.

II. Facts

As noted above, Rush pled guilty to all charges against him on April 6, 2004. At the outset of the plea hearing, the Court placed Rush under oath. Rush informed the Court that he was 23 years old, had a twelfth grade education, could read and understand the English language, had gone over the indictment with his attorney, and had discussed the charges in the indictment and the case in general with his attorney. Rush informed the Court that he was fully satisfied with the counsel, representation, and advice given him by his attorney. The Court read each count of the indictment aloud to Rush and asked after each whether Rush understood what he was charged with in that count. Each time, Rush replied, "Yes." The Court then asked Rush if he had "any questions at all with regards to the nature of the charges against you or the possible penalties?" "No," Rush replied. The Court then informed Rush of his rights.

THE COURT: Do you understand you are innocent until proven guilty. That you need to be proven guilty beyond a reasonable doubt. You have a right to a jury trial. You have a right to confront your accusers. You have a right to bring witnesses in to testify on your own behalf. You have a right against self-incrimination, meaning you do not need to testify unless you choose to do so. You have a right to have an attorney with you at each stage of these proceedings, and you are here represented by counsel. Do you understand the rights I've just explained to you?

RUSH: Yes.

THE COURT: Do you understand if you plead guilty, you are giving up your right to a trial by jury, and you will be sentenced as if you were found guilty by a jury?"

RUSH: Yes.

The government presented the factual basis for the guilty plea. Each of the transactions with which Rush was charged was captured on audio and videotape. Rush conceded that the factual basis was correct. Rush then pled guilty to each count. The Court found that Rush had knowingly, voluntarily, and competently pled guilty and adjudged him guilty those offenses.

Rush was sentenced as a career offender. He had a lengthy criminal history including convictions for aggravated battery in 1998, unlawful delivery of a look-alike substance within 1,000 feet of a school in 2000, aggravated robbery in 2000, and unlawful delivery of a controlled substance in ...


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