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Israel Carl Isbell v. United States of America

December 7, 2011

ISRAEL CARL ISBELL, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

E-FILED

Wednesday, 07 December, 2011 03:38:33 PM Clerk, U.S. District Court, ILCD

ORDER

This matter is now before the Court on Petitioner, Israel Carl Isbell's ("Isbell"), Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 and the Government's Motion to Dismiss. For the reasons set forth below, the Motion to Dismiss [#11] is GRANTED, and Isbell's § 2255 Motion [#1] is DISMISSED.

BACKGROUND

On March 5, 2010, Isbell entered a guilty plea pursuant to a written plea agreement to receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252(A)(b)(1). That same day, Isbell executed a Statutory and Appeal Waiver waiving his right to appeal his conviction and sentence and his right to collaterally attack his conviction and sentence in exchange for the Government's dismissal of one count of possession of child pornography. On June 25, 2010, he was sentenced to a term of 180 months' imprisonment, a sentence that was within the U.S.S.G. range.

In his section 2255 motion, Isbell attempts to collaterally attack his conviction based on allegations of ineffective assistance of counsel. Specifically, Isbell argues that his counsel erroneously advised that any appeal would be "fruitless" if he were to receive a within-guidelines sentence, that his counsel erroneously advised him that, notwithstanding his waiver of appeal and waiver of collateral attack, he could still seek a lower sentence if there was a subsequent, favorable change in USSG §2G2.2, and that his counsel was ineffective by virtue of not having Isbell psychologically examined.

On July 12, 2011, the Government filed its Motion to Dismiss [#11]. Isbell subsequently requested and was granted three separate extensions of time to respond to the Motion to Dismiss. The deadline for responsive pleadings was November 18, 2011; Isbell failed to file his traverse within that timeframe. The Court notes that on November 8, 2011, the office of the Deputy Clerk for the Peoria Division received a letter from Isbell which attempted to dispute the Court's deadline for responsive pleadings. However, Isbell indicated that "[he's] not filing a formal motion here, but a simple change of address." [#18 at 1]. This Order follows.

STANDARD

"[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Under section 2255, relief "is available only when the 'sentence was imposed in violation of the Constitution or laws of the United States,' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack." Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). A section 2255 motion is not a substitute for a direct appeal; see Doe v. United States, 51 F.3d 693, 698 (7th Cir.), cert. denied, 116 S. Ct. 205 (1995); nor is it a means by which a defendant may appeal the same claims a second time. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007).

Because claims of ineffective assistance of counsel usually involve evidence outside of the trial record, such claims may be brought for the first time in a section 2255 motion. Calabrese v. United States, 2011 U.S. Dist. LEXIS 106195 (N.D. Ill. Sept. 16, 2011); citing Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). As such, the Court finds that Isbell has not procedurally defaulted his ineffective assistance of counsel claims.

DISCUSSION

The seminal case on ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court stated that in order for a prisoner to demonstrate that counsel's performance fell below the constitutional standard, the petitioner would have to show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. A prisoner must also prove that he has been prejudiced by his counsel's representation by showing "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The courts, however, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 690.

To satisfy Strickland's prejudice prong in this case, Isbell must demonstrate through objective evidence a reasonable probability that, but for counsel's purportedly erroneous advice, he would not have entered the guilty plea and would have insisted upon going to trial. United States v. Woolley, 123 F.3d 627, 635 (7th Cir. 1997). "It is far from obvious how a petitioner is expected to make such a showing, but it is clear that 'merely making such an allegation is insufficient.'" United States v. Ryan, 986 F.Supp. 509, 513 (N.D.Ill. 1997), citing Key, 806 F.2d at 139; see also McCleese v. United ...


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