United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
On August 26, 2010, a jury found Ronald Smith guilty of conspiring to possess five kilograms or more of cocaine with intent to distribute and with attempting to possess five kilograms or more of cocaine with intent to distribute. On October 27, 2010, another judge of this court sentenced Smith to fourteen years in prison (168 months).
Smith has moved pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence. He alleges that his lawyers rendered ineffective assistance of counsel in failing to inform him of a proposed plea agreement and in failing to offer at sentencing appropriate evidence and argument about his military service and PTSD diagnosis.
For the reasons stated below, the Court denies Smith's motion.
On December 17, 2008, the government filed a criminal complaint against Smith charging him with narcotics offenses. Smith was arrested the next day. On March 5, 2009, the government indicted him on charges of conspiring to distribute and possess with intent to distribute five kilograms or more of cocaine between 2003 and December 6, 2008 and attempting to possess with intent to distribute five kilograms or more of cocaine on December 5, 2008. On March 25, 2009, Smith was released on bond.
At first, Smith, who resided in Columbus, Ohio, retained Kenneth Boggs (also from Columbus) as his trial counsel. But Boggs abandoned Smith's case around May 2009 and was "never seen or heard from by either Mr. Smith or the Court again." 2255 Mot. at 2. Boggs was eventually suspended from practice by the Ohio Supreme Court.
Smith then retained Cornelius Lewis, who before that time apparently had been involved as second chair to Boggs, though that is less than crystal clear. Lewis appeared at some but not all, or even most, of the pretrial court appearances. Smith alleges in his section 2255 motion that "several attorney's [sic] substituted in for Mr. Lewis on behalf of Mr. Smith at various status conferences, none with Mr. Smith's consent and all unfamiliar with him, his case, or the procedural posture of his case." Id. at 2-3. The record reflects, for example, that attorney Nicholas Kournetas, who had never met or spoken with Smith, nevertheless represented him at a status hearing on January 6, 2010. It does not appear that Smith himself attended any of the status conferences; presumably his appearance was waived by the judge who was presiding over the case.
On February 1, 2010, the government sent Lewis a draft plea agreement. The draft plea agreement stipulated that "defendant agrees to enter a voluntary plea of guilty to Count One of the indictment, which charges defendant with conspiring to distribute and possess with intent to distribute a controlled substance, namely, 5 kilograms or more of mixtures and substances containing a detectable amount of cocaine...." Govt.'s Resp., Ex. E (draft plea agreement) at 2. The draft agreement contemplated that Smith would admit that he had bought at least 1, 500 kilograms of cocaine from a co-conspirator to distribute to others.
The draft plea agreement reflected that that the charge to which Smith would be pleading guilty carried a mandatory minimum sentence of 10 years. It also contemplated that the parties would acknowledge that the Sentencing Guidelines base offense level was 38, because the amount of controlled substances involved in the offense exceeded 150 kilograms. Under the proposal, the parties would agree to disagree on whether Smith should get a "role in the offense" enhancement, with the government taking the position that a two-level enhancement was warranted because Smith was a manager or supervisor, and Smith free to present evidence and argument to the contrary. The draft contemplated that the government reserved the right to challenge a reduction for acceptance of responsibility, with Smith free to argue that the reduction should apply. The government agreed, however, that if the court gave Smith credit for acceptance of responsibility, the government would seek a further one-level reduction based on the timeliness of Smith's guilty plea. The draft plea agreement stipulated that Smith had zero criminal history points and that he was in criminal history category I. The draft plea agreement reached the following conclusions regarding Smith's advisory Guidelines range:
if the government's calculations are correct, the anticipated offense level is 37 (if the Court finds that defendant has accepted responsibility), which, when combined with the anticipated criminal history category of I, results in an anticipated advisory Sentencing Guidelines range of 210 to 262 months' imprisonment.... If defendant's calculations are correct, the anticipated offense level is 35, which, when combined with the anticipated criminal history category of I, results in an anticipated advisory Sentencing Guidelines range of 168 to 210 months' imprisonment....
Id. at 8.
On February 1, 2010, Lewis sent the government an e-mail acknowledging that he had received the draft plea agreement and stating his intention to review the agreement with Smith. During a March 3, 2010 status hearing (at which Smith was not present), Lewis told the judge that both he and Smith had reviewed the draft plea agreement and that Smith might decide whether to accept the agreement by April 14, 2010. On April 12, 2010, Lewis sent the government another e-mail, stating that "I have spoken with my client and it looks as if we need to set this case for trial as he is unwilling to plead to anything carrying the mandatory 10 year minimum." Govt.'s Resp., Ex. H.
On June 21, 2010, the judge set Smith's case for a jury trial on August 23, 2010. On July 1, 2010, Lewis informed the district court that the parties had been unable to reach a plea agreement. Smith did not ...