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United States of America v. Lavoyce Billingsley

December 27, 2012

UNITED STATES OF AMERICA PLAINTIFF,
v.
LAVOYCE BILLINGSLEY DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Petitioner LaVoyce Billingsley filed this pro se Motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Billingsley's motion is based on a claim of ineffective assistance of counsel before trial, at trial, and on appeal. For the reasons set forth below, the Court dismisses Billingsley's Motion.

BACKGROUND

On February 1, 2007, Billingsley and two co-defendants were charged in an indictment on four counts: (1) conspiracy to possess with intent to distribute a controlled substance, namely, in excess of five 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; (3) carrying and possessing a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); and (4) possession of a firearm after previously being convicted of a felony 18 U.S.C. § 922(g)(1).

On June 26, 2009, a jury convicted Billingsely of Counts One, Three and Four and acquitted him of Count Two of the indictment. On January 20, 2010, this Court sentenced Billingsley to 100 months imprisonment each on Counts One and Three, to run concurrently; and 60 months imprisonment on Count Four, to run consecutively to the sentence on Counts One and Three. On April 6, 2011, the Seventh Circuit denied Billingsley's appeal and affirmed the judgment and sentence of this Court.

On May 22, 2012, Billingsley filed the instant Motion to vacate his conviction and correct his sentence. He alleges that his attorneys were ineffective in preparing and executing his defense. In support of his position, Billingsley identifies eight separate grounds in which he contends this ineffective assistance of counsel occurred.*fn1 These are:

1. Counsel was ineffective for failing to move the Court for dismissal of the indictment, prior to trial, because the government committed misconduct in testifying falsely before the grand jury on material facts;

2. Counsel was ineffective for failing to object to and/or appeal the Court's order separating Billingsley from his co-conspirators and by prohibiting communications between them;

3. Counsel was ineffective for failing to object to and/or appeal this Court's order that the Government did not need to produce a recording device that malfunctioned during a conversation between Billingsley and an undercover ATF agent;

4. Counsel was ineffective for failing to adequately introduce evidence to the jury showing that Billingsley was engaged in a telephone call at the time of his arrest, which would have purportedly refuted the allegation that Billingsley possessed a firearm at the time of the arrest;

5. Counsel was ineffective for failing to move the Court to instruct the jury that a defendant cannot be guilty of conspiracy if they conspired with a government agent;

6. Counsel was ineffective for failing to request an "all or nothing" jury instruction;

7. Counsel was ineffective for failing to object to this Court's decision to make an upward variance from the United States Sentencing Guideline range without first affording Billingsley notice that the Court was considering making this variance; and

8. Counsel was ineffective for failing to properly convey the government's plea offer to Billingsley during ...


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