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Reed v. United States

November 10, 2010

MONICA D. REED, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

MEMORANDUM & ORDER

Before the Court is petitioner Monica Reed's pro se 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. 6), petitioner filed a reply (Doc. 10), and the government filed a response to petitioner's reply (Doc. 15). Petitioner has also filed an amendment (Doc. 21). Also before the Court are two motions filed by the petitioner urging this Court to proceed with issuing a ruling on the § 2255 petition (Doc. 17, 20). The government filed a response to these documents (Doc. 18), and the petitioner filed a reply (Doc 19). Finally, the petitioner has filed a motion for recognance [sic] bond (Doc. 22), a memorandum in support of new evidence (Doc. 23), and a motion to have petitioner's pre-sentence investigation report revised (Doc. 24).

Background

On November 8, 2006, petitioner pled guilty to a ten count indictment charging six counts of Wire Fraud in violation of 18 U.S.C. § 1343, one count of Bank Fraud in violation of 18 U.S.C. § 1344, one count of Access Device Fraud in violation of 18 U.S.C. § 1029(a)(2), one count of Aggravated Identity Theft in violation of 18 U.S.C. § 1028A(a)(1) and (b), and one count of Use of a False Document in violation of 18 U.S.C. § 1001(a)(3). On February 13, 2007, this Court sentenced petitioner to 111 months of imprisonment as a result of petitioner's plea. Petitioner did not file a notice of appeal to challenge her conviction or sentence, although she now asserts that she timely asked her attorney to file an appeal.

In her motion to vacate, set aside or correct the sentence imposed upon her by this Court, petitioner initially argues: (1) that she received ineffective assistance of counsel; (2) that she was subjected to prosecutorial misconduct; and (3) that the sentence imposed upon her was both unreasonable and illegal.

The issues raised in this petition were further developed in petitioner's reply to the government's response (Doc. 10) and in petitioner's reply to the government's response to her motion to proceed with ruling on her petition (Doc. 19). Among the issues raised by the petitioner in these filings was the claim that counsel provided her with ineffective assistance by failing to file a requested appeal.

Additionally, petitioner filed an amendment to her initial motion alleging that statutory interpretations present in recent United States Supreme Court jurisprudence require that her sentence be set aside (Doc. 21). Further, petitioner filed a motion seeking release from incarceration on a recognance[sic] bond (Doc. 22), a memorandum supporting the consideration of additional evidence with regard to her § 2255 motion (Doc. 23), and a motion to have her presentence investigation report revised (Doc. 24). The government has not filed responses to petitioner's amended request for relief, petitioner's motions for release on bond, or revision of pre-sentence investigation report, and has offered no consideration of petitioner's memorandum supporting additional evidence.

This Court will first consider petitioner's claim of ineffective assistance based on counsel's failure to file a requested direct appeal. The Court must consider this issue before any other because of petitioner's potential opportunity to have a direct appeal granted, which would allow her to potentially raise all or some of her claims raised here as part of a direct appeal. Should this Court determine that an appeal is not warranted, it will render its decision on all remaining claims at the appropriate time.

ANALYSIS

I. Claim of Ineffective Assistance based on Counsel's Failure to File a Requested Direct Appeal

Petitioners are entitled to hearings regarding the appropriateness of § 2255 claims unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. 28 U.S.C. § 2255(b) (2010). However, grounds for relief pursuant to 28 U.S.C. § 2255 are more limited than grounds for relief on direct appeal. See Guinan v. United States, 6 F.2d 468, 470 (7th Cir. 1993). When possible, all issues raised in a § 2255 motion must first be raised on direct appeal. See Williams v. United States, 805 F.2d 1301, 1304 (7th Cir. 1986), cert. denied, 481 U.S. 1039 (1987).

Specifically, there are three issues that a § 2255 motion cannot raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, absent a showing either of good cause for the procedural default and actual prejudice stemming from the alleged error, or that the district court's failure to consider the issues presented would result in a fundamental miscarriage of justice. See McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996); Degaglia v. United States, 7 F.3d 609, 611 (7th Cir. 1993); Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).

The Court confronts an interesting situation, however, because the petitioner claims she requested her attorney to file a direct appeal and her attorney did not do so. "If the defendant told his lawyer to appeal, and the lawyer dropped the ball, then the defendant has been deprived, not of effective assistance of counsel, but of any assistance of counsel on appeal. Abandonment is a per se violation of the sixth amendment." Castellanos, 26 F.3d at 718 (citing United States v. Cronic, 466 U.S. 648, 658-59 (1984)).

The Seventh Circuit has held that the "prejudice" prong of Strickland need not be shown preliminarily on the failure to appeal issue. Id. at 720. In other words, "failure to take an appeal, despite the defendant's request, is ineffective assistance without regard to the probability of success on appeal." Id. at 719. The Circuit noted the importance of the "request" in this analysis, as "[o]nly a failure to appeal a judgment that the defendant desires to appeal is problematic." Id. While an attorney may advise against an imprudent appeal, "if the defendant nonetheless ...


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