Name of Assigned Judge Virginia M. Kendall Sitting Judge if Other or Magistrate Judge than Assigned Judge
Williams's Motion for relief pursuant to 28 U.S.C. § 2255 is denied. O[ For further details see text below.] Docketing to mail notices.
Petitioner Vernon Williams filed this pro se Motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Williams's motion is based on a claim of ineffective assistance of counsel before trial, at trial, and on appeal. For the reasons stated below, the Court dismiss Williams's Motion.
On February 1, 2007, Williams and two co‐defendants were charged in an indictment on three counts: (1) conspiracy to possess with intent to distribute a controlled substance, namely, in excess of 5 kilograms of cocaine, in violation of 21 U.S.C. § 846; (2) attempted possession of a controlled substance, namely, in excess of 5 kilograms of cocaine, in violation of 21 U.S.C. § 846; and (3) carrying and possessing a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). See United States of America v. Lewis et al., No. 07 CR 00007. (No. 07 CR 00007, Doc. 13).
On June 17, 2009, a jury found Williams guilty of Counts One and Three and acquitted him of Count Two of the indictment. Id. (No. 07 CR 00007, Doc. 336). On November 16, 2009, this Court sentenced Williams to 120 months imprisonment on Count One and 60 months imprisonment on Count Three, to run consecutively to Count One. Id. (No. 07 CR 00007, Doc. 367). Williams filed a timely Notice of Appeal on December 5, 2009. Id. (No. 07 CR 00007, Doc. 373). On April 6, 2011, the Seventh Circuit denied Williams's appeal and affirmed the judgment and sentence of this Court. See United States v. Lewis, 641 F.3d 773 (7th Cir. 2011).
On June 13, 2011, Williams filed the instant Motion to vacate his conviction and correct his sentence. He alleges that his attorney was ineffective for failing to move to dismiss Count Three before trial, at trial, or on appeal. (No. 11 C 4066, Doc. 1). Williams also alleges that Count Three should be dismissed because of his actual innocence. (Id.)
Under 28 U.S.C. § 2255 "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States...may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). The relief sought in a § 2255 motion "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). Thus, relief should be granted "only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal quotations and citations omitted). Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." See Rule 4(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts.
Pursuant to 28 U.S.C. § 2241, a prisoner claiming that "[h]e is in custody in violation of the Constitution or laws or treaties of the United States" may petition the court for a writ of habeas corpus. See 28 U.S.C. § 2241(c)(3). A prisoner's right to bring a § 2241 petition to attack a conviction or sentence is limited. See Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). In general, § 2255 is the "exclusive means for a federal prisoner to attack his conviction" and a prisoner may only "proceed under § 2241 . . . in those cases where § 2255 is 'inadequate or ineffective to test the legality of [the] detention.'" Id. (quoting 28 U.S.C. § 2255(e)).
Williams argues that he did not commit a drug trafficking crime, and that therefore his attorney was ineffective by not asking the Court to dismiss Count Three of the indictment, which alleged that Williams committed a felony by possessing a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Williams argues that he should never have been found guilty of Count Three of the indictment because he did not commit a drug trafficking crime, but merely participated in a conspiracy to possess drugs. He alleges that because his attorney never moved to dismiss Count ...