United States District Court, S.D. Illinois
DAVID R. HERNDON, District Judge.
I. Introduction, Background and Procedural History
This matter is before the Court on Brooks' motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1) and supplements (Docs. 12 & 14). The government opposes the motion (Docs. 8 & 16). Based on the following, the Court denies Brooks' petition. Further, having closely examined the record, the Court concludes that an evidentiary hearing is not necessary in this matter. It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); Cooper v. United States, 378 F.3d 638, 641-42 (7th Cir. 2004) (district court did not abuse its discretion in denying petitioner an evidentiary hearing where petitioner did not provide additional facts or assertions that would warrant a hearing).
On April 29, 2011, Brooks pled guilty to unlawful possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1), pursuant to a plea agreement. United States v. Brooks, 10-30236-DRH; Docs. 21, 23, 24, & 25. The plea agreement noted that the parties disputed the issue of whether Brooks qualified as an Armed Career Criminal ("ACC"). The government argued that Brooks was an ACC, and thus, his advisory guideline range did not apply and he was subject to the 15 year mandatory minimum sentence, resulting in an advisory guideline range of 180 months. Brooks argued that he was not an ACC, and thus, his advisory guideline range was 46-57 months. In addition, as part of the plea agreement, Brooks agreed to waive all of his appeal and collateral review rights with certain exceptions. One of those exceptions was that Brooks reserved the right to appeal the legal issue of whether he was an ACC based on his prior criminal convictions.
On September 14, 2011, the Court found Brooks to be an ACC and sentenced Brooks to 180 months in prison and Judgment reflecting the same was entered on September 15, 2011. Id. at Docs. 41 & 44. During the proceedings, Brooks was represented by attorney Paul Sims. Thereafter, Brooks, through Mr. Sims, filed a notice of appeal. Id. at Doc. 46. On May 24, 2012, the Seventh Circuit Court of Appeals issued the Mandate affirming the sentence and conviction in Brooks' criminal case. Id. at Doc. 59.
Subsequently, Brooks filed this § 2255 petition on May 6, 2013 (Doc. 1). Brooks raises many general arguments regarding ineffective assistance of counsel during his criminal case. Specifically, Brooks argues that his attorney failed to properly negotiate a plea and failed to properly advise him of all the facts and law relative to the plea and, thus, his plea was not knowingly and voluntary and that counsel was ineffective at sentencing. Further, Brooks again raises the issue that he is not an ACC. Thereafter, Brooks filed supplemental pleading (Doc. 12) and a related back amendment (Doc. 14). The government has responded (Docs. 8 & 16). As the motion is ripe, the Court turns to address the merits of the petition.
II. Legal Standard
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. More precisely, "[r]elief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice.@ Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). As a result, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Of course, a § 2255 motion does not substitute for a direct appeal. A defendant 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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. Meanwhile, a § 2255 motion cannot pursue non-constitutional 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 § 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, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).
The failure to hear a claim for ineffective assistance of counsel in a § 2255 motion is generally considered to work a fundamental miscarriage of justice because often such claims can be heard in no other forum. They are rarely appropriate for direct review since they often turn on events not contained in the record of a criminal proceeding. Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Fountain, 211 F.3d at 433-34. Further, the district court before which the original criminal trial occurred, not an appellate court, is in the best position to initially make the determination about the effectiveness of counsel in a particular trial and potential prejudice that stemmed from that performance. Massaro, 538 U.S. at 504-05. For these reasons, ineffective assistance of counsel claims, regardless of their substance, may be raised for the first time in a § 2255 petition.
The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). A party claiming ineffective assistance of counsel bears the burden of showing (1) that his trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000). Either Strickland prong may be analyzed first; if that prong is not met, it will prove fatal to plaintiff's claim. Strickland, 466 U.S. at 697; Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993).
Regarding the first prong of the Strickland test, counsel's performance must be evaluated keeping in mind that an attorney's trial strategies are a matter of professional judgment and often turn on facts not contained in the trial record. Strickland, 466 U.S. at 689. The petitioner's burden is heavy because the Strickland test is "highly deferential to counsel, presuming reasonable judgment and declining to second guess strategic choices." United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (quotations omitted). In other words, the Court must not become a "Monday morning quarterback." Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990). With regards to the second prong of Strickland, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Fountain, 211 F.3d at 434; Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir. 2006). "A reasonable probability is defined as one that is sufficient to undermine confidence in an outcome." Adams, 453 F.3d at 435 (citing Strickland, 466 U.S. at 694).
In the instant case, the Court cannot say that Mr. Sims' performance significantly prejudiced Brooks or that Mr. Sims' representation fell below an objective standard of reasonableness. Further, the Court cannot say that despite these alleged errors the results of the proceedings would have been different.
First, Brooks argues that his attorney was ineffective for failing to protect his constitutional rights because it "well documented as the fact that Brooks is not a[sic] Armed Career Criminal." He also contends that Mr. Sims provided ineffective assistance by grossly misadvising him regarding the plea agreement proceedings. He claims that Mr. Sims informed him that there "was a 100% chance of not being charged as an Armed Career Criminal;" that the government's evidence showed that he only had a state conviction and that there was insufficient evidence to show that his Tennessee offense could be held under the residual clause as a violent felony for the purpose of the armed career criminal enhancement. Thus, Brooks, maintains that such mis-advice prejudiced him. The Court addresses these two grounds together as they are interrelated.
The Court finds that Brooks' petition fails as to these two issues. His claims that his counsel was ineffective are without merit. The Court finds that Brooks has not met the burden regarding the involuntariness of his plea. Moreover, the Court rejects Brooks' arguments that his counsel did not inform him of the facts and the elements of this case. First, Brooks does not offer support for his allegation that his attorney did not advise him properly. See McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996) (petitioner must present objective evidence that he would not have entered the guilty plea; his own self-serving testimony is not enough). Therefore, his claims of ineffective assistance of counsel on these grounds do not succeed. See United States v. Jordan, 870 F.2d 1310, 1318 (7th Cir.), cert. denied, 493 U.S. 831 (1989)(holding that even assuming petitioner's counsel should have advised petitioner of possible consequences of his plea, petitioner has the burden to offer evidence to support the bare allegations that his counsel failed to advise him of these possibilities). Furthermore, the Seventh Circuit held:
In Barnes, the defendant's lawyer failed to inform him that if he pled guilty, he would be classified as a career offender, and thus, subject to a much greater punishment than the lawyer predicted. We held that even a "mistake that great" was insufficient to establish a constitutional violation.
United States v. Martinez, 169 F.3d 1049, 1053 (7th Cir. 1999). Also, Brooks' arguments are belied by his own statements at the change of plea hearing which are presumed truthful. See United States v. Standiford, 148 F.3d 864, 868 (7th Cir. 1998). Furthermore, it is clear that Brooks understood the terms of the plea agreement negotiated by Mr. Sims and entered a voluntary plea of guilty. Magistrate Judge Williams thoroughly went through the plea agreement with him to ensure he understood it. Specifically, the following occurred during the change of plea hearing:
THE COURT: Do you further understand that having been sworn, if you do not answer my questions truthfully, you will be subject to the penalties of perjury or making a false statement.
MR. BROOKS: Yes, sir.
THE COURT: Mr. Brooks, have you had ample opportunity to discuss your case with your attorney, Mr. Sims, who is here with you now?
MR. BROOKS: Yes, sir.
THE COURT: Are you satisfied with your attorney's representation?
MR. BROOKS: Yes, sir.
THE COURT: Mr. Brooks, I want to remind you that your case is set for a jury trial on May 9th 2011 at 9:00 a.m., before Chief United States District Judge David R. Herndon. Under the Constitution and laws of the United States, you have an absolute right to that trial by jury. No one, including myself, another judge of this court, your own attorney, the government attorney, or any agents of the government can deny you your constitutional right to a jury trial on the charges contained in this indictment.
And this case will proceed to a jury trial before the district judge, as scheduled unless, you enter a guilty plea here today. Do you understand that?
MR. BROOKS: Yes, sir I do.
The COURT: Mr. Brooks, I want to explain to you what the possible punishments that are involved with pleading guilty to this offense.
And in your case, it looks to me there's some dispute about that, so I am going to make sure that we're very clear as to what these possible penalties are.
First of all, under normal circumstances, - okay. Under normal circumstances, not necessarily applying to you, the offense of felon in possession of a firearm carries a maximum penalty of not more than 10 years of imprisonment, a find up to $250, 000, or both such fine and term of imprisonment, not more than three years of supervised release, and 100-dollar mandatory special assessment.
However, it is the government's position that you are an armed career criminal. Do you understand that?
MR. BROOKS: Yes, sir.
THE COURT: Should you be determined to be an armed career criminal by the sentencing court, in this case Judge Herndon, as an armed career criminal, you would have a mandatory minimum term of imprisonment of 15 years up to a term of life imprisonment, a fine of not more than $25, 000, or both such fine and term of imprisonment. In addition to that, you would have, again, up to a three-year term supervised release and a 100-dollar mandatory special assessment. Do you understand those possible penalties should you be found to be an armed career criminal, Mr. Brooks?
MR. BROOKS: Yes, sir, I do.
MS. SCOTT: Your Honor, I'm sorry to interrupt, but that's a typo. I'm sorry. It's actually a 250, 000-dollar ...