United States District Court, Central District of Illinois, Springfield Division
TIMOTHY D. AKINS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RICHARD MILLS, U.S. DISTRICT JUDGE
Pending is the Motion of Petitioner Timothy D. Akins Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence [d/e 1]. The Government has filed a Response to the Motion [d/e 7]. In addition, the Government has filed a Supplement [d/e 8] to its Response. The Petitioner has also filed a Supplemental Pleading [d/e 9], wherein he asserts a new claim.
Upon reviewing these filings, the Court concludes that no evidentiary hearing is warranted.
In his § 2255 motion, the Petitioner raises an ineffective assistance of counsel claim, contending that counsel was ineffective for failing to challenge his status as a career offender based on his qualifying convictions.
On August 25, 2010, the Petitioner was charged by Information with a single count of Possession with the Intent to Distribute Heroin. See Case No. 3:10-cr-30060-RM-BGC. Subsequently, the Government filed an Information Regarding Prior Felony Drug Conviction pursuant to 21 U.S.C. § 851, advising the Petitioner that he faced an increased statutory penalty due to his multiple prior felony drug convictions.
The Petitioner entered an open plea to the charge on September 15, 2010.
In the Presentence Investigation Report (PSR), the Petitioner’s base offense level was calculated to be 16. An increase of two levels pursuant to USSG § 2D1.1(b)(1) was recommended because the Petitioner possessed a dangerous weapon (a revolver) during the commission of the offense. The Petitioner was determined to qualify as a career offender, pursuant to USSG 4B1.1(b)(B) and, because he faced a maximum sentence of 30 years of imprisonment, his offense level was determined to be 34. The Petitioner had previous convictions for aggravated discharge of a firearm, robbery and possession of a controlled substance with intent to deliver, which were deemed career offender qualifying offenses. Following a three-level reduction for acceptance of responsibility, the Petitioner’s final offense level was calculated to be 31.
The Petitioner was determined to have a Criminal History Category of VI, based on 24 criminal history points (and his status as a career offender). Based on a final offense level of 31 and Criminal History Category of VI, the Petitioner’s guideline range was calculated to be 188 to 235 months.
The Petitioner’s sentencing hearing was on February 3, 2011. There were no objections to the guideline range as calculated in the PSR. The Government recommended a sentence of 188 months imprisonment, while the Defendant recommended a term of 144 months. After considering the parties’ arguments, the Court imposed a sentence of 188 months.
The Petitioner filed a timely Notice of Appeal. On appeal, the Petitioner argued that the district court applied an impermissible presumption of reasonableness to a sentence within the guideline range and the court failed to consider his arguments in mitigation. On August 31, 2011, the United States Court of Appeals for the Seventh Circuit found that the record did not support the Petitioner’s claims of procedural error and affirmed the district court’s judgment.
This Motion under § 2255 followed.
A. Legal standard