The opinion of the court was delivered by: Wayne R. Andersen District Judge
MEMORANDUM OPINION AND ORDER
This matter comes before the court on the petition of Andre Lawrence ("Petitioner" or "Lawrence"), as a prisoner in federal custody, for a writ of habeas corpus to correct his sentence pursuant to 28 U.S.C. §2255. Lawrence argues that he received ineffective assistance of counsel in that his attorney (1) failed to challenge his criminal history category and (2) failed to timely move to dismiss a count of the indictment. For the reasons set forth below, the petition is granted.
On July 16, 2002, Lawrence was charged with the following counts in a multi-count indictment: (Count 1) conspiring to distribute and possess with intent to distribute controlled substances within 1000 feet of an elementary school, in violation of 21 U.S.C. §§ 841(a)(1), 860(a), 846; (Count 39) possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924 (c)(1)(A) and (B); and (Count 40) possessing a firearm while being a felon, in violation of 18 U.S.C. §922(g)(1). A jury trial began on September 16, 2003. In the government's opening statement, the government's attorney mentioned two guns that were found during a search of Lawrence's house. The attorney stated, "those guns make up the charges of Andre Lawrence being a felon in possession and using a gun in furtherance of a drug crime." (Government's Resp. at 2 (citing Tr. 50).)
On November 5, 2003, the government moved to dismiss Count 40, possessing a firearm while being a felon, in violation of 18 U.S.C. §922(g)(1), against Lawrence. On December 1, 2003, defense counsel moved for a mistrial due to the government's reference to Lawrence's status as a felon in opening statement. (Government's Resp. at 3 (citing Tr. 5611).) The Court denied that motion. Id.
On December 18, 2003, a jury found Lawrence guilty of both Count 1 and Count 39. Lawrence then filed a Motion for a New Trial on February 10, 2004, alleging errors including the government's reference in their opening statement to his status as a felon. On June 29, 2005, this Court denied the motion for a new trial. This Court noted that "the one brief mention" of a previous felony conviction "was not discussed again and was not raised in closing argument" and that it was "fanciful to believe that in course of [a] three-and-a-half month trial the one reference to defendant Andre Lawrence's felon status affected the outcome of the case." (Government's Resp. at 4 (citing Tr. (6/29/05) 24).)
On May 6, 2004, the government submitted its version of the offense and stated its position that Lawrence's criminal history category was I based on a January 1995 conviction for possession of a controlled substance. (Government's Resp. at 4.) In the Presentence Investigation Report ("PSR"), the probation officer determined that Lawrence's criminal history category was III, based on (1) an April 1990 finding of delinquency in the Juvenile Court of Cook County for retail theft, (2) a June 1990 finding of delinquency in the Juvenile Court of Cook County for aggravated battery, (3) a January 1995 conviction for possession of a controlled substance that was referenced in the government's May 6, 2004 version of the offense, and (4) a finding that the defendant committed the instant offense while under probation from the January 1995 conviction. PSR at 8-9.
On May 12, 2005, June 21, 2005, and August 29, 2005 Petitioner, along with several co-defendants, filed motions challenging several aspects of the jury's findings and to bar application of enhanced penalties pursuant to 21 U.S.C. § 851. (Government's Resp. at 5.)
On September 5, 2005, Petitioner filed a sentencing memorandum. (Dkt. 898 in case 02 CR 200). In that memorandum, he noted the disagreement between the government's position that his criminal history category was I and the probation officer's position in the PSR that his criminal history category was III. Id. at 3. He stated his position that his criminal history category should be I, which would result in a range of less than 360 months. Id. at 5.
Petitioner was sentenced on September 19, 2005. The Court determined that it would "stand by the level 40, criminal history III" but then gave a below-Guideline sentence of 300 months imprisonment on the drug conspiracy conviction and a consecutive 60 months imprisonment on the gun charge because the Court found that Lawrence was "somewhat less involved in the conspiracy than the other co-defendants." Tr. (9/19/05) 63-65. The Court also stated that "the criminal history category of III correctly computed is not reflective of past violent crimes." Id. at 66.
Lawrence filed a timely notice of appeal on September 26, 2005. He joined his co-defendants in filing a joint brief on sentencing issues in which he argued that he and his co-defendants' Sixth Amendment rights were violated and challenged the sufficiency of the evidence supporting his conviction on Count 39 (the gun charge). He did not raise the issue that the Court erred in calculating his criminal history category or Guideline range, nor did he argue that the Court erred in not declaring a mistrial based on the government's reference in opening statements to his status as a felon. The Seventh Circuit affirmed Petitioner's conviction and sentence on March 24, 2008. See United States v. Seymour, 519 F.3d 700 (7th Cir. 2008).
Lawrence filed the instant petition on October 27, 2009. In his petition, Lawrence claims that he is entitled to relief due to the alleged ineffectiveness of his counsel. Specifically, Lawrence argues that his attorney: (1) failed to challenge his criminal history category at sentencing; and (2) failed to move to dismiss Count 40, the 18 U.S.C. § 922(g) (felon in possession) charges in his indictment. Based on these allegations, Lawrence requests that the court vacate, set aside, or correct his sentence.
STANDARD OF REVIEW UNDER 28 U.S.C. § 2255
The federal habeas corpus statute, 28 U.S.C. § 2255, provides that: 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 ...