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Davis v. United States

United States District Court, Seventh Circuit

November 7, 2013

STEVEN DAVIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 09-40088-GPM

MEMORANDUM AND ORDER

G. PATRICK MURPHY United States District Judge

This matter is before the Court on Petitioner Steven Davis’s (“Petitioner”) motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Petitioner’s motion is based on claims of ineffective assistance of counsel, a 21 U.S.C. § 851(b) violation, a due process violation, and prosecutorial vindictiveness. Generally, Petitioner contends he was denied effective assistance of counsel because his attorneys failed to file a notice of appeal as instructed, failed to rebut the Government’s argument for enhanced sentence under 21 U.S.C. § 851(a)(1), failed to amend the Court’s clerical mistakes, and failed to contest the constitutionality of Petitioner’s prior convictions. Petitioner further alleges the Court failed to follow proper procedure under 21 U.S.C. § 851(b), that his due process rights were violated because his sentence was based upon inaccurate information, and, finally, that the Government vindictively prosecuted him for refusing to cooperate. The Government responded to Petitioner’s motion as ordered by this Court.

Background

On December 16, 2009, Petitioner was charged in a one-count indictment with conspiracy to distribute heroin, in violation of 21 U.S.C. § 846 (Crim. Doc. 1). On December 29, 2009, Attorney Burton Shostak was appointed to represent Petitioner (Crim. Doc. 13, 14). On March 19, 2010, the Government filed an information to establish prior conviction (Crim. Doc. 20). On April 9, 2010, Petitioner entered his guilty plea before Magistrate Judge Philip Frazier (Crim. Doc. 21-25). This Court accepted the Report and Recommendation of Judge Frazier and adjudged Petitioner guilty on July 19, 2010 (Crim. Doc. 34, p. 2). The sentencing hearing was held on July 19, 2010. Because of a medical issue, Grant Shostak, Burton Shostak’s partner and son, represented Petitioner at the sentencing (Crim. Doc. 34). This Court sentenced Petitioner to 120 months imprisonment and 8 years supervised release with imposed fines and assessments totaling $400 (Crim. Doc. 28). Written judgment was issued on July 22, 2010 (Crim. Doc. 30). No appeal was filed in this matter.

On July 25, 2011, Petitioner filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (Civ. Doc. 1). His motion was timely filed, as it was mailed on July 18, 2011. Petitioner argues his sentence should be vacated, set aside, or corrected because: (1) his counsel was ineffective for failing to file a notice of appeal; (2) his counsel was ineffective because he failed to attack the 21 U.S.C. § 851 enhancement factors, and clerical mistakes were not amended prior to sentencing; (3) pursuant to 21 U.S.C. § 851(b) the court failed to inquire whether he affirmed or denied the convictions alleged in the 21 U.S.C. § 851 information; (4) his due process rights were violated because his sentence was based upon inaccurate information; (5) his counsel was ineffective by failing to contest the constitutionality of his prior convictions pursuant to 21 U.S.C. § 851(c)(2); and (6) the Assistant U.S. Attorney vindictively prosecuted him because he chose to remain silent (Civ. Doc. 1).

An evidentiary hearing was ordered by this Court on Petitioner’s claim that his attorneys failed to file a notice of appeal (Civ. Doc. 16). Prior to the evidentiary hearing, Petitioner filed an ex parte motion requesting phone records (Civ. Doc. 24). Petitioner’s motion was denied (Civ. Doc. 28). The evidentiary hearing was held on November 4, 2013. Petitioner appeared in person via teleconference, and was represented by appointed counsel. In addition to Petitioner’s testimony, the Court heard testimony from attorneys Melissa Day, Burton Shostak, and Grant Shostak. This Court assessed the credibility of each witness, and found Petitioner’s credibility lacking. This Court concluded Petitioner did not request his attorneys to file a direct appeal. Therefore, a habeas petition is the appropriate procedural vehicle, and this Court will now make findings on the merits of Petitioner’s remaining § 2255 claims. For the foregoing reasons, Petitioner’s motion is DENIED on all grounds.

Analysis

I. Legal Standard

Relief under section 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), cert denied, 551 U.S. 1132 (2007). Accordingly, habeas relief under § 2255 is “reserved for extraordinary situations.” Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996), citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993). “To succeed on a § 2255 petition a convicted defendant must show that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack.” Id.

II. Ineffective Assistance of Counsel for Failure to File A Notice of Appeal

At the evidentiary hearing on this issue, this Court found Petitioner’s credibility lacking. Petitioner hesitantly admitted to prior convictions, his testimony about requesting an appeal was contradicted by attorneys Burton Shostak and Grant Shostak, and the Federal Public Defender had no record or recollection of Petitioner’s calls. Although Petitioner claims he requested an appeal the day of sentencing, the sentencing hearing record shows Petitioner answered “no” when asked if he wanted to file an appeal (Crim. Doc. 34, p. 8). Petitioner’s testimony that he requested Grant Shostak to file an appeal after the sentencing hearing was contradicted by Grant Shostak’s testimony at the hearing. Finally, as the Government pointed out, Petitioner waited nearly one year to file this motion although Petitioner admitted to knowing a direct appeal was not filed shortly after his sentencing hearing in 2010. Consequently, this Court finds Petitioner never requested an appeal and he has no ground for habeas relief.

III. Ineffective Assistance of Counsel for Failing to Attack 851 Enhancement

In order to show ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), a petitioner must satisfy a two-pronged test by showing: (1) “counsel's representations fell below an objective standard of reasonableness” (the performance prong); and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” (the prejudice prong). Id. at 688, 694. Here, Petitioner claims his attorney ineffectively assisted him because Attorney Grant Shostak failed to attack the 851 enhancement information as false, invalid, and unconstitutional. However, Petitioner’s claim does not satisfy either prong of the Strickland test. The sentencing record is clear that Petitioner’s attorney did object to the 851 enhancement on double jeopardy grounds (Crim. Doc. 34, p. 4). Counsel’s representation was not deficient. Moreover, Petitioner does not allege which charges of his 851 enhancement ...


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