United States District Court, S.D. Illinois
DAMION M. THOMAS, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal Case No. 05-cr-30114-DRH
MEMORANDUM & ORDER
DAVID R. HERNDON, Chief Judge.
This matter is before the Court on petitioner Damion Thomas' motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). For the reasons stated below, Thomas' motion is DENIED.
On September 9, 2005, Thomas pled guilty to one count of felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). This Court sentenced Thomas on January 18, 2006 (Cr. Doc. 22). Pursuant to 18 U.S.C. § 924(e), the Court sentenced Thomas as an "armed career criminal" to a mandatory minimum sentence of fifteen years of incarceration (Cr. Doc. 25, amended at Doc. 29).
On direct appeal, Thomas challenged the constitutionality of his sentence, arguing that it was based on recidivism facts not found by a jury beyond a reasonable doubt. Thomas acknowledged that his contention was contrary to controlling precedent, see e.g. Harris v. United States, 536 U.S. 545, 568 (2002) (constitutionally permissible for a sentencing judge to make findings of fact that lead to an enhanced mandatory minimum); Almendarez-Torres v. United States, 523 U.S. 224 (1998) (holding that prior convictions need not be charged in the indictment or proved beyond a reasonable doubt), and raised the issue, "strictly to preserve it for further review" (Cr. Doc. 32, United States v. Thomas, No. 06-1404 (7th Cir. Mar. 21, 2006)). The Seventh Circuit summarily affirmed this Court and upheld the sentence ( Id. ). On June 19, 2006, the Supreme Court denied Thomas' petition for a writ of certiorari. See Thomas v. United States, 547 U.S. 1217, 126 S.Ct. 2906 (June 19, 2006)).
On July 16, 2013, Thomas filed the present motion to vacate, set aside, or correct his sentence (Doc. 1). He argues that his sentence is unconstitutional in light of two recent Supreme Court decisions- Descamps v. United States, 133 S.Ct. 2276 (2013), and Alleyne v. United States, 133 S.Ct. 2151 (2013).
II. Legal Standard
A prisoner may move to vacate, set aside or correct his sentence if he claims "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, 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).
Section 2255 is an extraordinary remedy because it asks the district court "to reopen the criminal process to a person who has already had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Accordingly, relief under Section 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)), as a collateral attack pursuant to Section 2255 is not a substitute for a direct appeal. Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007).
Thus, unless a movant demonstrates changed circumstances in fact or law, he may not raise issues already decided on direct appeal. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). Further, a petitioner cannot raise constitutional issues that he could have but did not directly appeal unless he shows good cause for and actual prejudice from his failure to raise them on appeal, or unless failure to consider the claim would result in a fundamental miscarriage of justice. Bousley v. United States, 523 U.S. 614, 622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000). Moreover, a Section 2255 motion cannot pursue nonconstitutional issues that were not raised on direct appeal regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The only way such issues could be heard in the Section 2255 context is if the alleged error of law represents "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979).
In his reply brief, Thomas raises a claim of ineffective assistance of counsel (Doc. 5). Importantly, the Supreme Court has held that the usual procedural default rule does not generally apply to such claims as, "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003).
To succeed in an ineffective assistance of counsel claim, a petitioner must demonstrate (1) his attorney's performance "fell below an objective standard of reasonableness, " and (2) "but for counsel's unprofessional errors the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). To satisfy the first prong, "the Court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. To satisfy the second prong, a petitioner must demonstrate to a "reasonable probability" that without the unprofessional errors, "the result of the proceeding would have been different." Id. at 696. A district court's analysis begins with a "strong presumption that the defendant's attorney rendered adequate representation of his client." United States v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000). Thus, a petitioner must overcome a heavy burden to prove that his attorney was constitutionally deficient. Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006).
A. The Armed Career ...