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Timothy Harrell v. United States of America

June 15, 2011

TIMOTHY HARRELL, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

E-FILED

Wednesday, 15 June, 2011 04:21:55 PM

Clerk, U.S. District Court, ILCD

OPINION

On July 15, 2010, Petitioner filed a pro se motion (#1) pursuant to 28 U.S.C. § 2255. Petitioner raised two claims of ineffective assistance of counsel, namely: (1) that his appellate counsel, following the limited remand, failed to challenge this court's decision not to revisit Petitioner's sentence; and (2) that his trial counsel failed to challenge the validity of prior state convictions used for enhancement. Also, Petitioner contends that his sentence may be reviewed under 18 U.S.C. § 3582(c)(2), and furthermore that the new Fairness in Sentencing Act of 2010 ("FSA") should apply retroactively to reduce his sentence.

This court has carefully reviewed the record in this case and the arguments of the parties. Following this thorough review, this court agrees with the Government that the Petitioner's claims of ineffective counsel are meritless. Also, Petitioner's motion to reduce sentence under 18 U.S.C. § 3582(c)(2) and the recently enacted FSA both fail because Petitioner has a career criminal status and the FSA does not apply retroactively to § 2255 motions for prisoners previously sentenced in a crack cocaine conviction.

FACTS

On September 8, 2006, Petitioner was indicted and charged in Case No. 06-20054 with possession of 50 or more grams of cocaine base (crack) with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (2006). The statutory penalty for that offense was a mandatory minimum of 10 years to life imprisonment.

On December 21, 2006, Petitioner appeared before U.S. Magistrate Judge David G. Bernthal and pleaded guilty to the offense charged in the indictment. This court thereafter accepted the plea on January 11, 2007.

Petitioner was involved in the distribution of cocaine and crack cocaine in Champaign-Urbana, Illinois. Law enforcement officers utilized a confidential source to purchase crack cocaine from Petitioner twice on August 10, 2006. In addition, on August 11, 2006, Petitioner was the subject of a traffic stop, as a result of which he was found in possession of several bags of crack cocaine, with a total weight of 14.4 grams, one bag of cocaine with a total weight of 2.4 grams, and $190 in cash. During a subsequent search of Petitioner's motel room, officers found him in possession of 78 grams of crack cocaine, 114.7 grams of cocaine, and $1,980 in cash.

On April 24, 2007, this court sentenced Petitioner to 262 months of imprisonment, five years of supervised release, and a $100 special assessment. In imposing the sentence, this court determined that Petitioner was a career offender under § 4B1.1 of the United States Sentencing Guidelines. See PSR ¶25. Petitioner's career offender status was due to his "two prior felony crime of violence convictions" for residential burglary. Id. Based on Petitioner's career offender status and the applicable statutory maximum sentence of life imprisonment, his base offense level was 37 and his criminal history category was VI. After reducing the base offense level by three levels for acceptance of responsibility, this Court calculated Petitioner's final offense level at 34 and his sentencing range at 262-327 months of imprisonment. This Court imposed a 262-month sentence, the bottom of the advisory Guidelines range.

On appeal, Petitioner's counsel filed a motion to withdraw, citing an inability to identify a non-frivolous issue for appeal. See United States v. Harrell, No. 07-2027 (7th Cir. January 22, 2008). The Seventh Circuit initially granted counsel's motion and dismissed the appeal. See id.

On February 11, 2008, the Seventh Circuit vacated its order dismissing the appeal and later directed full briefing on the merits. See United States v. Harrell, No. 07-2027 (7th Cir. February 11, 2008). Petitioner's counsel thereafter filed a brief and requested a limited remand to this court pursuant to Kimbrough v. United States, 128 S.Ct. 558 (2007), because of the crack cocaine/cocaine disparity.

On December 11, 2008, the Seventh Circuit issued a limited remand, asking this court whether it would be "inclined to depart from the career offender guideline [under Kimbrough v. United States, 128 S. Ct. 558 (2007) and United States v. Liddell, 543 F.3d 877 (7th Cir. 2008)] because of the crack cocaine disparity." United States v. Harrell, No. 07-2027 (7th Cir. December 11, 2008). As the Seventh Circuit stated in its limited remand order, sentencing courts: may apply their discretion under Kimbrough to the career offender guideline. Courts may not disregard ...


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