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Richard Parrish v. United States of America

December 13, 2012

RICHARD PARRISH, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge.

E-FILED

Thursday, 13 December, 2012 01:47:01 PM Clerk, U.S. District Court, ILCD

OPINION

This cause is before the Court on Petitioner Richard Parrish's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (§ 2255 Motion) (d/e 1). In the Motion, Petitioner seeks to vacate his federal sentence on the following grounds: (1) he was erroneously classified as a career offender; (2) the presiding judge should have recused herself from the proceedings; and (3) he received ineffective assistance of trial and appellate counsel. For the reasons that follow, the § 2255 Motion is DENIED.

I.FACTS

In April 2009, Petitioner was indicted on two counts of distribution of crack cocaine in Case No. 09-30032, United States District Court for the Central District of Illinois. See Indictment, Case No. 09-30032 (d/e 8); 21 U.S.C. § 841(a)(1). In August 2009, Petitioner entered an open plea of guilty to both counts before United States District Judge Jeanne E. Scott. See August 31, 2009 Change of Plea Transcript, Case No. 09-30032 (d/e 23). Petitioner was represented by appointed counsel Jon Gray Noll.

The probation officer who prepared the Presentence Investigation Report (PSR) concluded that Petitioner qualified as a career offender. PSR, Case No. 09-30032 (d/e 18); see also U.S.S.G. § 4B1.1(a) (2009) (a career offender is a defendant who in the instant case is at least 18 years of age and convicted of a crime of violence or controlled substance offense, and who also has at least two prior felony convictions of a crime of violence of controlled substance offense). Specifically, the PSR found that Petitioner had at least two prior felony convictions for crimes of violence or controlled substance offenses. Id. at p. 9. Those prior convictions included the following state court convictions: (1) a second degree murder conviction in Sangamon County Case No. 95-CF-171 when Petitioner was 15 years old; (2) a manufacture/delivery of a controlled substance conviction in Sangamon County Case No. 01-CF-895; and (3) a domestic-battery conviction in Sangamon County case No. 06-CF-538. Id. The PSR noted that Petitioner was a minor at the time of the second-degree murder offense. Petitioner was convicted as an adult but sentenced under the provisions of the Juvenile Court Act. Id. at p.

13. The PSR also reflected that on the domestic-battery conviction, the Count Petitioner pleaded guilty to had charged Petitioner with knowingly and without legal justification causing bodily harm to a household member by striking her with his fist. Id. at pp. 21-22.

At the January 2010 sentencing hearing, defense counsel objected to the career offender designation. See January 25, 2010 Sentencing Transcript, Case No. 09-30032 (d/e 24); see also Defendant's Commentary on Sentencing Factors, Case No. 09-30032 (d/e 12). While counsel conceded that Petitioner's prior felony drug conviction was a qualifying offense, he argued that Petitioner's other two state court convictions-the one for second degree murder and the other for domestic violence-did not support a career offender designation. Sentencing Tr. pp. 7-9, Case No. 09-30032 (d/e 24). Counsel argued that the second degree murder conviction did not support a career offender designation because Petitioner was sentenced as a juvenile and served time in the juvenile Department of Corrections. Id. at p. 7. Counsel also argued that the domestic-violence conviction did not support a career offender designation because the victim was not injured. Id. at p. 8-10.

The Court found that Petitioner qualified as a career offender. Id. at pp. 14-16. Specifically, the Court found the conviction for manufacture or delivery of a controlled substance qualified Petitioner as a career offender. Id. at 15. The Court also found that, even though Petitioner only needed one other qualifying conviction, both of Petitioner's other convictions qualified as a predicate offense for career offender status. Specifically, the Court found the second degree murder conviction qualified as a predicate offense for career offender status because Petitioner was tried and convicted as an adult, even though he was sentenced as a juvenile. Id. at 15. The Court also found that the domestic-battery conviction qualified as a predicate offense for career offender status because the charging instrument alleged Petitioner knowingly and without legal justification caused bodily harm to the victim by striking her with his fist. Id. at p. 16.

Petitioner's sentencing guideline range was 262 to 327 months.*fn1 The Court sentenced Petitioner to 250 months imprisonment on each of Counts 1 and 2 to run concurrently.

Petitioner filed a notice of appeal and a different attorney, Mark D. Stuaan, was appointed to represent Petitioner. See Case No. 09-30032 ( d/e 14, 22). Appellate counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 744 (1967), and Petitioner opposed counsel's submission. See United States v. Parrish, 422 Fed. App'x 540, 542 (7th Cir. 2011).

The Seventh Circuit granted appellate counsel's motion to withdraw and dismissed the appeal. Id. As is relevant to Petitioner's § 2255 Motion, the Seventh Circuit found frivolous any argument that Petitioner's second degree murder conviction could not support a career offender designation because Petitioner was 15 at the time of the offense and served his sentence in a juvenile facility. Id. The Seventh Circuit stated that Petitioner "was tried and convicted as an adult, and our analysis turns on how a juvenile was convicted rather than how he was sentenced." Id., citing United States v. Gregory, 591 F.3d 964, 967 (7th Cir. 2010).

The Seventh Circuit also found frivolous the argument that the domestic-battery offense was nonviolent because the victim offered to testify at Petitioner's sentencing that she was not injured. Parrish, 422 Fed. App'x at 543. The Seventh Circuit stated "we consider only the battery conviction itself and not the underlying facts to decide if an offense is a crime of violence." Id.

On August 23, 2012, Petitioner filed his § 2255 Motion. *fn2 Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings, this Court examined the Motion, found that summary dismissal was not warranted, and directed the United States to file an answer, motion, or other response. See August 27, 2012 Text Order. On September 24, 2012, the United States filed a response requesting that the Court deny the Motion (d/e 3). Petitioner filed a Reply (d/e 5) and a Supplement (d/e 6).

After reviewing the transcripts and records of the prior proceeding in Case No. 09-30032, as well as the parties' pleadings herein, the Court finds that an evidentiary hearing is not warranted. See Rule 8 of the Rules Governing Section 2255 Proceedings For the United States District Courts. For the reasons discussed below, this Court finds that the record conclusively shows that Petitioner is not entitled to relief. See Politte v. United States, 852 F.2d 924, 931 (7th Cir. 1988) (an evidentiary hearing is not required where the record "conclusively demonstrates that defendant is entitled to no relief") (citation and internal quotation marks omitted).

II. ANALYSIS

Section 2255 allows a federal prisoner to attack his sentence on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, the court was without jurisdiction to impose such sentence, the sentence was in excess of the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). "Habeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996).

A. Petitioner's Career Offender Claim is Barred by the Law-of-the-Case Doctrine The career offender sentencing ...


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