United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN W. DARRAH, District Judge.
Petitioner Michael Partee is currently serving concurrent sentences of 120 and 262 months for illegal possession of firearms and distribution of a controlled substance. Partee has moved, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. The matter has been fully briefed, and the parties were also granted leave to file supplemental memoranda in light of the United States Supreme Court's recent decision, Alleyne v. United States, 133 S.Ct. 2151 (2013). For the reasons stated below, Partee's § 2255 Motion  is denied.
On August 20, 2003, Partee, a previously convicted felon, was indicted by a federal grand jury, alleging he sold drugs to a government informant in exchange for money and guns. See United States v. Partee, No. 03-cr-725-1 (N.D. Ill.); see also United States v. Partee, 273 F.Appx. 529, 531 (7th Cir. 2008). Partee was charged with two counts: (1) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count One); and (2) distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count Two). Following the indictment, the Government offered Partee a plea agreement, as discussed below. Ultimately, Partee rejected the plea offer, waived his right to a jury trial and proceeded to a bench trial, which was held on May 3-4, 2005.
By written opinion issued on September 7, 2005, this Court found Partee guilty of both counts. On March 30, 2006, this Court issued a supplemental opinion, expressly finding that the Government failed to prove beyond a reasonable doubt that the cocaine base substance Partee was distributing was "crack cocaine" for the purposes of the enhanced penalty provisions of 21 U.S.C. § 841(b). United States v. Partee, No. 03-cr-725, 2006 WL 861167 (N.D. Ill. Mar. 30, 2006).
On January 30, 2007, this Court held a sentencing hearing. During the hearing, the Government presented evidence and testimony, including that Partee's prior conviction in the State of Georgia constituted a "controlled substance offense, " which, when combined with his prior conviction for attempted murder, placed him at a base offense level 26 for Count One, pursuant to U.S.S.G. § 2K.1, and also qualified him as a "career offender" under U.S.S.G. § 4B1 for the Count Two. Partee, 273 F.Appx. at 533. The Government's evidence included court records and the transcript from the plea hearing in Georgia. The Court considered the evidence, found that Partee's Georgia conviction involved the sale of cocaine, and determined that the Sentencing Guidelines provided a range of 324 to 405 months of imprisonment. Partee was then sentenced to 120 months on Count One and 324 months on Count Two, to run concurrently.
Partee appealed both his sentence and conviction to the Seventh Circuit, arguing that, although he was charged in Georgia with selling cocaine, the sentence he received was only for possession. The Seventh Circuit rejected Partee's argument and affirmed his conviction. Partee, 273 F.Appx. at 532-33. The Seventh Circuit agreed that Partee's Georgia conviction was for selling cocaine and that, as such, Partee was properly sentenced as a career offender. Id. However, the Seventh Circuit vacated the sentence and remanded for resentencing due to other errors in calculating the Guidelines Range. Id. at 534.
On June 10, 2009, a resentencing hearing was held. Partee again objected to the finding that the Georgia conviction was a controlled substance offense. This Court applied the Seventh Circuit's holding that the Georgia conviction qualified Partee as a career offender, determined that Partee had a total offense level of 34, and sentenced Partee to a concurrent sentence of 120 months on Count One and 262 months on Count Two, which Partee is currently serving.
Partee then appealed his new sentence. In United States v. Partee, 376 F.Appx. 614, 618 (7th Cir. 2010) (" Partee II "), the Seventh Circuit affirmed Partee's sentence, holding that it was the law of the case that Partee's Georgia conviction was a controlled substance offense for purposes of the Guidelines calculations. While the Seventh Circuit acknowledged that the light sentence Partee received in Georgia for selling cocaine "was inconsistent with the applicable Georgia law, " the court explained that "Partee was charged with selling cocaine, the plea transcript indicates that Partee was pleading to the indictment as charged, and the judgment of conviction notes that Partee was convicted of counts one and two of the indictment, not the lesser included offenses. Those pieces of the state court record resolve this appeal." Id., 376 F.Appx. at 618 (emphasis in original). Partee's petition for a writ of certiorari was subsequently denied by the United States Supreme Court. See Partee v. United States, 131 S.Ct. 439 (2010).
On September 26, 2011, Partee filed this timely motion for habeas corpus relief, and counsel was appointed to represent him. Partee argues that: (1) he received ineffective assistance of counsel, in violation of the Sixth Amendment, during plea negotiations; and (2) the use of his Georgia conviction to increase his sentence as a career offender violated the Due Process Clause. On September 19, 2013, Partee requested and was granted leave to file a supplemental memorandum of law in light of the United States Supreme Court's recent decision, Alleyne v. United States, 133 S.Ct. 2151 (2013), and the Government filed a supplemental response brief. In his supplemental brief, Partee argues that under Alleyne, any enhancements to his sentence should have been proven beyond a reasonable doubt.
Historically, habeas corpus relief has been viewed as "an extraordinary relief, a bulwark against convictions that violate fundamental fairness.'" Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993) (quoting Engle v. Isaac, 456 U.S. 107, 126 (1982)) (other internal citations omitted); see also Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (relief under § 2255 is "reserved for extraordinary situations."). Section 2255 allows a prisoner to move to vacate, set aside, or correct his or her sentence if "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). The district court must review the record and draw all reasonable inferences in favor of the government. See Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992).
Claims of ineffective assistance of counsel are reviewed under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under this test, a petitioner must show both: (1) that counsel's performance fell below an objective standard of reasonableness under the circumstances; and (2) that the deficient performance prejudiced the defendant. Id. at 688-94. To establish prejudice, the petitioner must prove there is a reasonable probability the proceeding would have had a different result but for the errors of counsel. Id. at 694. If a petitioner fails to make a proper showing under one of the Strickland prongs, the court need not consider the other. See Strickland, 466 U.S. at 697 ("In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant...."). With respect to the rejection of a plea, the petitioner must show: "there is a reasonable probability that the plea offer would have been presented to the court..., that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012). In other words, the petitioner must show that "the outcome of the plea process would have been different with competent advice." Id. at 1384.
A district court's "review of the attorney's performance is highly deferential' and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011) (citation omitted); Cooper v. United States, 378 F.3d 638, 641 (7th Cir. 2004) ("Defense counsel is strongly presumed to ...