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United States of America v. Derrick Shareef

May 13, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DERRICK SHAREEF, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

Derrick Shareef pled guilty to a charge of attempted use of a weapon of mass destruction in violation of 18 U.S.C. § 2332a(a)(2)(D). Judge David Coar sentenced Shareef to a thirty-five year prison term. Alleging that his lawyers were constitutionally ineffective, Shareef-who is proceeding pro se-has moved to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. For the reasons stated below, the Court denies Shareef's motion in part and orders the government to submit additional materials in support of its position.

Background

Shareef was the target of a months-long investigation involving a plot to detonate explosives at the CherryVale Mall near Rockford, Illinois. In September 2006, Shareef became acquainted with William Chrisman, who-unbeknownst to Shareef-was cooperating with the FBI. Chrisman befriended Shareef and invited him to stay in his home. Over the course of the next three months, Chrisman and Shareef discussed a plan to attack the mall during Christmas season. Chrisman recorded many of these conversations without Shareef's knowledge. He also told Shareef that he could arrange for them to purchase guns and explosives to use in the attack.

Chrisman and Shareef continued to plan the attack throughout the fall of 2006. They visited CherryVale Mall to strategize and created videotaped statements to be released following the attack. Through Chrisman, they also arranged to purchase guns, grenades, and ammunition from an undercover agent posing as a weapons supplier. In early December 2006, Chrisman and Shareef met the agent in a parking lot to purchase the weapons. The agent provided Shareef with a locked box containing a nine-millimeter handgun, four non-functioning grenades, and several rounds of non-functioning ammunition. In exchange, Shareef gave the agent stereo speakers worth about $2,000. As Shareef put the box containing the weapons into the trunk of Chrisman's car, agents monitoring the transaction arrested him.

A federal grand jury returned a two-count indictment against Shareef on January 4, 2007. Count one charged Shareef with violating 18 U.S.C. § 2332a(a)(2)(D) by attempting to use a weapon of mass destruction against persons or property within the United States. Count two alleged that Shareef violated 18 U.S.C. § 844(I) by attempting to maliciously damage and destroy real or personal property by means of fire and an explosive.

Shareef pled guilty to count one without a plea agreement on November 28, 2007. He later informed his attorney, Michael Mann, that he wished to file a motion to withdraw his guilty plea and proceed to trial to present an entrapment defense. Mann disagreed with Shareef and filed a motion to withdraw, which Judge Coar granted.

Judge Coar subsequently appointed Donald Young to represent Shareef. Shareef told Young about his desire to withdraw his plea, and Young advised Shareef that an entrapment defense was unlikely to succeed. Based on Young's advice, Shareef again changed his mind and chose not to seek withdrawal of the guilty plea. On September 30, 2008, Judge Coar sentenced Shareef to a thirty-five year prison term, five years of supervised release, and a $5,000 fine.

The Seventh Circuit affirmed Shareef's conviction on direct appeal, United States v. Aguilar-Huerta, 576 F.3d 365 (7th Cir. 2009), and the Supreme Court denied his petition for a writ of certiorari on December 7, 2009. Shareef v. United States, 130

S. Ct. 811 (2009).

Discussion

In his section 2255 motion, Shareef seeks to vacate his guilty plea and proceed to trial. He argues that his attorneys were ineffective because they failed to investigate and raise defenses of entrapment and sentencing entrapment. The government counters that Shareef's motion must be denied because (1) the motion is untimely, (2) Shareef testified under oath that he was satisfied with the advice and efforts of his attorneys, and (3) Shareef cannot show that his attorneys' conduct was objectively unreasonable or that it prejudiced him.

1. Timeliness

The government argues that Shareef's section 2255 motion is untimely because "[t]his Court received the instant § 2255 Petition on December 10, 2010," more than one year after Shareef's conviction became final on December 7, 2009. Pl.'s Resp. to § 2255 Mot. at 6. The Court disagrees. Motions to vacate a sentence under section 2255 are subject to a one year period of limitations. See 28 U.S.C. § 2255(f). "A paper filed by an inmate confined in an institution is timely if deposited in the institution's internal mailing system on or before the last day for filing." Rule 3(d), Rules Governing Section 2255 Proceedings in the United States District Courts. Shareef states under oath that he gave his motion to prison officials for mailing on December 5, 2010, a statement confirmed by a receipt he has provided thatindicates that the post office in ...


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