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Clark v. United States

United States District Court, Seventh Circuit

June 17, 2013

KENNETH CLARK, Petitioner,


JOE BILLY McDADE, Senior District Judge.

This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). Respondent filed a Response (Doc. 5), and Petitioner filed a Reply (Doc. 6). For the reasons stated below, Petitioner's § 2255 Motion is denied.

Petitioner also requested an evidentiary hearing on his claim. (Doc. 1 at 27). While the Court should hold an evidentiary hearing if Petitioner "alleges facts that, if proven, would entitle him to relief, " Petitioner has failed to meet this burden here. See Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). Accordingly, because the factual issues relevant to Petitioner's claims in this action can be resolved on the record, an evidentiary hearing is not required. Oliver v. United States, 961 F.2d 1339, 1343 n.5 (7th Cir. 1992) ("No hearing is required in a section 2255 proceeding... if the factual matters raised by the motion may be resolved on the record before the district court."). Thus, Petitioner's request for evidentiary hearing is also denied.


In January 2010, after a jury trial in this Court, Petitioner was convicted of possession of fifty grams or more of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). See Judgment, United States v. Clark, No. 09-cr-10067 (C.D. Ill. Jan. 7, 2010), ECF No. 85. Petitioner filed an appeal, but the Seventh Circuit affirmed the judgment. United States v. Clark, 657 F.3d 578, 586 (7th Cir. 2011).

The general minimum statutory sentence for a defendant who violates 21 U.S.C. § 841(b)(1)(A) begins at ten years of imprisonment with five years of supervised release, but the statute increases this minimum to at least twenty years of imprisonment with ten years of supervised release if the defendant has a prior felony drug conviction. See 21 U.S.C. § 841(b)(1)(A). In 1990, Petitioner pleaded guilty to possession of a controlled substance in violation of 720 Ill. Comp. Stat. 570/402, and the Illinois state court sentenced him to 30 months' probation pursuant to a first-time offender statute, 720 Ill. Comp. Stat. 570/410.[1] (Doc. 1 at 16). Petitioner successfully completed his probation for this offense in 1993.

In the instant case, the government gave notice of its intent to seek an enhancement of Petitioner's sentence based on the prior state felony drug conviction pursuant to 21 U.S.C. § 851. See Notice of Intent to Use Evidence of Prior Conviction, United States v. Clark, No. 09-cr-10067 (C.D. Ill. July 7, 2009). After the jury's guilty verdict, the government included this prior conviction in its presentence investigation report; Petitioner responded to the presentence investigation report with a number of objections, but did not object to or deny the conviction at issue. See Defendant's Objections to the Presentence Investigation Report, United States v. Clark, No. 09-cr-10067 (C.D. Ill. Mar. 30, 2010), ECF No. 76. The Court then sentenced Petitioner with the enhanced minimum statutory term of twenty years of imprisonment with ten years of supervised release. See Judgment, United States v. Clark, No. 09-cr-10067 (C.D. Ill. Jan. 7, 2010), ECF No. 85.

Petitioner subsequently filed a § 2255 Motion, alleging that his prior Illinois conviction for possession of cocaine was not a "felony drug offense, " that his sentence was improperly enhanced, and that his trial and appellate counsel provided ineffective assistance by failing to raise this issue at sentencing or on direct appeal. (Doc. 1 at 17).


A sentence may be vacated, set aside, or corrected pursuant to § 2255 if the sentence "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). "[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). Thus, § 2255 is limited to correcting errors of a constitutional or jurisdictional magnitude or errors constituting a fundamental defect that results in a complete miscarriage of justice. E.g., Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).

"A § 2255 motion is not a substitute for a direct appeal." Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003). Where a petitioner fails to appeal his sentence, his claims in a § 2255 motion may be procedurally barred. Constitutional issues are barred unless the petitioner can show good cause for and prejudice from the failure to appeal the issue, or if refusal to hear the issue would result in a fundamental miscarriage of justice. See Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). An ineffective assistance of counsel claim, however, may be raised in a § 2255 motion regardless of whether it could have been raised on appeal and is not subject to procedural default analysis. Massaro v. United States, 538 U.S. 500, 504 (2003). As Petitioner solely raises a claim of ineffective assistance of counsel, it is not procedurally barred.

Because there is a strong presumption that counsel is effective, however, to succeed on a claim for ineffective assistance of counsel, Petitioner must show both that his counsel's performance was deficient and that he was prejudiced by the deficiency such that the result would have been different without the error. Strickland v. Washington, 466 U.S. 668, 687-91 (1984); see also, e.g., Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000). While Petitioner must satisfy both prongs to succeed on his claim, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland, 466 U.S. at 697. Rather, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id.

Petitioner asserts that he received ineffective assistance of counsel at the sentencing and appellate phases because his counsel failed to "(1) object to the 21 U.S.C. § 851 information and the application of the enhance [sic] penalty of 21 U.S.C. § 841(b)(1)(a) and or (2) argue on appeal that the prior Illinois drug conviction did not qualify as a prior felony drug offense under 21 U.S.C. § 802(44)." (Doc. 1 at 17). As the Court has determined that the result of the proceeding would not have been different regardless of any alleged deficiencies on the part of his counsel, it will direct its analysis to the prejudice prong.

The Court imposed an enhanced sentence under § 841(b)(1)(A) on the basis that Petitioner had a prior state felony drug offense. "The term felony drug offense' means an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances." 21 U.S.C. § 802(44). Petitioner argues that his prior conviction does not qualify as a "felony drug offense" under 21 U.S.C. §802(44), because "the state court was instructed to impose a sentence no greater than 30 months of probation, " and thus, he could not have been punished by imprisonment for more than one year. (Doc. 1 at 18-19). Petitioner ...

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