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Gates v. United States

United States District Court, Seventh Circuit

December 6, 2013

CALVIN GATES, Petitioner,
UNITED STATES of AMERICA, Respondent. Criminal No. 11-30049-WDS-7


WILLIAM D. STIEHL, District Judge.

Before the Court is petitioner's pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1), to which the Government has filed a response (Doc. 7), and petitioner has filed a reply (Doc. 9).[1]


On January 4, 2012, petitioner pleaded guilty, pursuant to a plea agreement and stipulation of facts, to one count of Conspiracy to Distribute and Possession with Intent to Distribute "Crack" Cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (No. 11-CR-30049-WDS-7, Docs. 232-34). On May 21, 2012, petitioner was sentenced to a term of imprisonment of 120 months. (No. 11-CR-30049-WDS-7, Docs. 245, 247). Petitioner did not file a direct appeal.

In his plea agreement, petitioner waived his right to appeal or collaterally attack his sentence. Despite the waiver, on May 10, 2013, petitioner filed the instant motion pursuant to 28 U.S.C. § 2255 (Doc.1), in which he asserts that (1) he was denied effective assistance of counsel because counsel did not inform him that the drug quantity attributed to him would be "arbitrarily increased by 800%, " subjecting petitioner to a substantially increased period of incarceration; and (2) his plea was not knowingly or intelligently made, and was made without an understanding of the consequences of the plea because he believed he was pleading to possession of fifty (50) grams of crack cocaine, but the amount attributed to him was "changed to 420 grams" without his consent. In response (Doc. 7), the government asserts that petitioner's § 2255 motion should be dismissed as barred by the collateral review waiver executed as part of his plea agreement.


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)). Section 2255 requires the court to vacate, set aside, or correct the sentence of a prisoner if the court finds that "the sentence was imposed 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." 28 U.S.C. § 2255(a).

Ineffective assistance of counsel claims, however, have been identified as generally raised and considered on collateral review, where a complete record can be developed. Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir. 2005). A court's review of an attorney's performance is highly deferential. Kimmelman v. Morrison, 477 U.S. 465, 381 (1986). The petitioner, therefore, bears a heavy burden to establish ineffective assistance of counsel. United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995).

Ineffective assistance claims are evaluated under the two-prong Strickland test. McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 688, 690, 694 (1984)). To succeed, the petitioner must establish that (1) counsel's performance fell below an objective standard of reasonableness and (2) that counsel's deficient performance prejudiced the defendant in such a way that, but for counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 688, 695. The Court is not required to analyze both the performance and prejudice prong, because the failure to satisfy either prong is fatal to the claim. Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993); United States v. Slaughter, 900 F.2d 1119, 1124 (7th Cir. 1990).

To show that counsel's performance fell below an objective standard of reasonableness, a petitioner must identify "acts or omissions of counsel that could not be the result of professional judgment. The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011) (internal quotations omitted). Moreover, counsel's performance must be evaluated considering all the circumstances, "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690.

To meet the prejudice prong, a petitioner need only show a reasonable probability that counsel's conduct altered the outcome, or, in other words, a probability sufficient to undermine confidence in the outcome. McElvaney v. Pollard, ___ F.3d ___, No. 12-2357, 2013 WL 4423669, at *5 (7th Cir. Aug. 20, 2013). In the plea context, to establish prejudice, a petitioner "must demonstrate through objective evidence that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Koons, 639 F.3d at 351 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). A mere allegation that the petitioner would have insisted on going to trial is inadequate. Id.


The plea agreement executed by petitioner provides, inter alia:

The Defendant is aware that Title 18, Title 28, and other provisions of the United States Code afford every defendant limited rights to contest a conviction and/or sentence. Acknowledging all this, and in exchange for the recommendations and concessions made by the Government in this plea agreement, the Defendant knowingly and voluntarily waives his right to contest any aspect of his conviction and sentence that could be contested under Title 18 or Title 28, or under any other provision of federal law, except that if the sentence imposed is in excess of the Sentencing Guidelines as determined ...

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