United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
Before the Court is pro se Petitioner LaRoy Muskin's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Muskin's Section 2255 motion and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
On June 23, 2010, a grand jury returned a superseding multi-defendant indictment charging Muskin with conspiring to possess with the intent to distribute controlled substances in violation of 21 U.S.C. § 846 (Count One), and possessing with the intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (Counts Four and Five). On January 27, 2011, Muskin entered a plea of guilty to Count One of the superseding indictment without a plea agreement. On September 20, 2011, the Court sentenced Muskin to 292 months in prison.
On March 22, 2012, the United States Court of Appeals for the Seventh Circuit remanded Muskin's case for resentencing. On August 16, 2012, the Court resentenced Muskin. First, the Court assigned a base offense level of 36 for a drug quantity of ten to thirty kilograms of heroin. The Court then added a two-level enhancement for possession of firearms by coconspirators under U.S.S.G. § 2D1.1(b)(1). Also, the Court deducted three levels for acceptance of responsibility under U.S.S.G. § 3E1.1(b). Therefore, Muskin's level offense was 35. Based on his Criminal History Category of VI, the corresponding guideline range was 292 to 365 months in prison. After reviewing the factors in 18 U.S.C. § 3553(a), the Court sentenced Muskin to the statutory maximum sentence of 240 months, which was well below the guideline range.
Muskin filed a notice of appeal on August 17, 2012. On April 10, 2013, Muskin's appellate counsel moved to voluntarily dismiss his appeal pursuant to Federal Rule of Appellate Procedure 42(b) and Circuit Rule 51(f) that the Seventh Circuit granted on that same day.
Beginning no later than 2007 and continuing until on or about October 8, 2009, Muskin conspired with Richard Harrington and others to possess, package, and sell heroin and other drugs on the west side of Chicago. Specifically, in early 2007, Harrington asked Muskin to assist him in packaging heroin that Harrington ultimately sold to various distribution spots in Chicago. Harrington also asked Muskin to drive the packaged heroin to the various distribution spots. Muskin agreed and started working for Harrington on an almost daily basis.
Harrington and others prepared the heroin for distribution at various stash houses that Harrington owned. In preparing the heroin, Harrington first mixed it with a substance to dilute it for street sale. Thereafter, Muskin and others laid out individual size pieces of aluminum foil on large folding tables. After the heroin was mixed, they would spoon the processed heroin onto the individual pieces of aluminum foil. Muskin and others then folded the aluminum foil pieces to prepare the heroin for distribution.
After the heroin was processed and packaged, Muskin delivered the heroin to Harrington's various distribution spots. Also, Muskin was responsible for picking up money that purchasers owed to Harrington from the sale of heroin. Muskin processed and packaged heroin for Harrington almost every day during the relevant time period. During this time period, Harrington's organization processed and packaged between 10 and 30 kilograms of heroin.
"[R]elief under § 2255 is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). More specifically, under Section 2255, relief "is available only when the sentence was imposed in violation of the Constitution or laws of the United States, ' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack." Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). Accordingly, a Section 2255 motion is not a substitute for a direct criminal appeal nor is it a means by which a defendant may appeal the same claims a second time. See Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (relief under 2255 "will not be allowed to do service for an appeal"); United States v. Fleming, 676 F.3d 621, 625 (7th Cir. 2012) ("A § 2255 petition is not a substitute for a direct appeal.'") (citation omitted). If a Section 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, see Sandoval v. United States, 574 F.3d 847, 850-51 (7th Cir. 2009), or that enforcing the procedural default would lead to a "fundamental miscarriage of justice." Fleming, 676 F.3d at 625. Because claims of ineffective assistance of counsel often involve evidence outside of the trial record, such claims may be brought for the first time in a Section 2255 motion. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014).
Construing his pro se Section 2255 motion liberally, see McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir. 2013), Muskin maintains that his trial counsel was constitutionally ineffective for failing to object to the two-level gun enhancement U.S.S.G. § 2D1.1(b)(1) and because counsel failed to object to the imposition of the statutory maximum sentence. Muskin also contends that his appellate counsel was constitutionally ineffective.
I. Ineffective Assistance of Trial Counsel Claims
To establish constitutionally ineffective assistance of trial counsel, Muskin must show that (1) his trial 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, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Blake v. United States, 723 F.3d 870, 879 (7th Cir. 2013). "To reflect the wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, [the Court's] review of an attorney's performance is highly deferential and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Yu Tian Li v. United States, 648 F.3d 524, 527-28 (7th Cir. 2011). To establish prejudice, Muskin must "show ...