The opinion of the court was delivered by: James E. Shadid United States District Judge
Monday, 20 June, 2011 03:50:16 PM Clerk, U.S. District Court, ILCD
This matter is now before the Court on Petitioner, Archie Rondell Kenerson's ("Kenerson"), Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, Kenerson's § 2255 Motion [#1] is DENIED.
On January 15, 2008, Kenerson was a passenger in a vehicle traveling in Rock Island, Illinois. He was stopped, seized and detained during a traffic stop by a Rock Island police officer. The officer ordered Kenerson out of the vehicle, patted-down and searched him, and seized what appeared to be crack cocaine from Kenerson's pants pocket.
On February 26, 2008, an indictment was returned against Kenerson, charging him with Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). On April 16, 2008, Kenerson filed a Motion to Suppress Evidence, seeking to suppress evidence obtained from the traffic stop and search that occurred on January 15, 2008.
On May 15, 2008, the Court held an evidentiary hearing and denied the motion. The Court found the testimony of the officers credible and the traffic stop appropriate. The Court further determined that a reasonable and articulable suspicion existed that a crime was being committed or had been committed. Based on the totality of the circumstances, the Court established that the pat-down of Kenerson was justified.
On September 15, 2008, the government filed a Notice of Intent to Rely upon Prior Felony Drug Convictions for Sentencing Enhancement. According to the Notice, because of Kenerson's prior felony drug convictions, his conviction in this case would have resulted in a mandatory minimum sentence of ten years of imprisonment under 21 U.S.C. § 841(b)(1)(B).
One day later, on September 16, 2008, the Court held a change of plea hearing. Kenerson pleaded guilty to Possession With Intent to Distribute Cocaine. Kenerson and the government entered into a written Reservation of Issues for Appeal, where pursuant to Rule 11(a)(2), Kenerson reserved his right to appeal the Court's Order denying his motion to suppress evidence. The Court further conducted a plea colloquy and established that Kenerson was competent, understood the charges and penalties, his plea was free and voluntary, and there was a factual basis for the plea.
On January 23, 2009, the Court held a sentencing hearing. The Court found Kenerson's offense level at 21 and his Criminal History Category at V. Kenerson was sentenced to the mandatory minimum sentence of ten years of imprisonment, eight years of supervised release and a $100.00 special assessment. The Court filed a written Judgment on January 26, 2009.
That same day, on January 26, 2009, Kenerson filed a Notice of Appeal. He challenged the circumstances of the traffic stop, the subsequent Terry search, and the police officer's resulting visual identification of crack cocaine in his back jean pocket. United States v. Kenerson, 585 F.3d 389, 390 (7th Cir. 2009). The Seventh Circuit affirmed this Court's denial of Kenerson's motion to suppress evidence. Id. at 394. On March 8, 2010, the Supreme Court denied Kenerson's Writ of Certiorari. Kenerson v. United States, 130 S.Ct. 1749 (2010).
On February 25, 2011, Kenerson sought collateral relief by filing a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody. Kenerson asked the Court that "his conviction and sentence be vacated and that the court's ruling in the suppression hearing be overturned and that he be sentenced in accordance with the Fair Sentencing Act of 2010's 18:1 ratio." Kenerson asserted five grounds on which he was being held in violation of the United States Constitution:
(1) Kenerson received ineffective assistance of counsel because his counsel proceeded under the false belief that Kenerson entered into a conditional plea with limited appellate rights when he actually entered into a blind plea with full appellate rights.
(2) Kenerson received ineffective assistance of counsel at the suppression hearing because his counsel failed to call as witnesses the alleged tipster, the officer who allegedly received the tip, and the sergeant ...