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Ross v. United States

June 9, 2010

DANIEL W. ROSS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM AND ORDER

Before the Court is petitioner Daniel W. Ross's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1), to which the government has filed a response (Doc. 4).

Background

On February 9, 2004, a jury convicted petitioner of conspiracy to distribute and possess with intent to distribute 5 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), and 846 on Count 1, and possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) on Count 2. On May 6, 2004, he was sentenced to 360 months and 240 months, said sentences to run concurrently. On May 7, 2004, petitioner filed a Notice of Appeal. In light of United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), the Seventh Circuit issued a limited remand. This Court found that it would have imposed the same sentence under the guidelines even if they had not been mandatory. On June 7, 2006, the Seventh Circuit affirmed. On November 27, 2006, the Supreme Court denied petitioner's application for a writ of certiorari.

Petitioner filed this § 2255 motion on November 26, 2007. The motion presents three grounds on which relief is sought, all based upon ineffectiveness of counsel. Ground one alleges ineffectiveness of counsel during petitioner's initial sentencing. Ground two alleges ineffectiveness of counsel during the limited remand before this Court. Ground three alleges ineffectiveness of counsel during petitioner's appeal from this Court's decision that the advisory nature of the guidelines would not change the terms of the sentence. On his § 2255 motion form, petitioner states that affidavits in support of these allegations are attached, but no affidavits can be found in the record. Notably, in its response, the government comments on the lack of affidavits. Petitioner has not replied or provided the Court with the referenced affidavits.

Analysis

1. Relief Under § 2255

28 U.S.C. § 2255provides, in pertinent part:

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 . may move the court which imposed the sentence to vacate, set aside or correct the sentence. § 2255(a). The statute further states:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. § 2255(b). Notably, "[m]otions to vacate a conviction or sentence ask the district court to grant an extraordinary remedy to one who already has had an opportunity for full process." Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006). "Before this remedy can be invoked, a district court must assure itself that a threshold showing has been made that justifies the commitment of judicial resources necessary to accomplish this delicate and demanding task." Id. An evidentiary hearing is not required "when a petitioner's allegations are 'vague, conclusory, or palpably incredible rather than detailed and specific.'" Id. at 1067 (quoting Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001)). "'Mere unsupported allegations cannot sustain a petitioner's request for a hearing.'" Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996) (quoting Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir. 1989).

Petitioner has not attached any affidavits to his § 2255 motion. While there is some suggestion that the absence of an affidavit is fatal to Petitioner's § 2255 motion, an affidavit is not strictly required. The Seventh Circuit has articulated the requirement that "either [] the motion be signed under penalty of perjury or be accompanied by an affidavit.." Kafo, 467 F.3d at 1068 (emphasis added). Since Petitioner has signed the motion under penalty of perjury, the Court can properly consider the allegations contained therein.

2. Ineffectiveness of Counsel

In reviewing a claim of ineffective assistance, the Court will apply the familiar two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984): First, the petitioner must prove that his counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that but for counsel's deficiency, there is a reasonable probability that the outcome would have been different. Id. at 694. The defendant bears a heavy burden in showing that his counsel was ineffective and that his defense was actually prejudiced. United States v. Holland, 992 F.2d 687, 691 (7th Cir.1993).

While not fatal to Petitioner's motion at the outset, the absence of any supporting affidavit means that the Court has only the limited allegations listed in the ยง 2255 motion from which to determine whether petitioner is entitled to a hearing. Ground one of the motion could be read as an allegation that the Court sentenced petitioner based in part on drug allegations present in the indictment but not proven at trial, and that his counsel's failure to object to this rendered his assistance ineffective. There is no mention of which drug was relied on or any other allegations that are "detailed and specific." Kafo, 467 F.3d at 1067. Thus, ground one falls under the "unsupported allegations" cautioned against in Prewitt. 83 F.3d at 819. Even if this Court were to assume that petitioner had ...


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