United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
On December 24, 2014, pro se Petitioner Erik Shamsud-Din filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. After the Court granted the government an extension of time to file its response, the government filed a timely response to Petitioner's § 2255 motion on February 10, 2015, and thereafter, Petitioner filed his reply on March 6, 2015. For the following reasons, the Court denies pro se Petitioner's § 2255 motion and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
On March 13, 2013, Petitioner was charged in a two-count superseding information for knowingly transporting an individual in interstate commerce with the intent that the individual engage in prostitution in violation of 18 U.S.C. § 2421. On May 13, 2013, Petitioner pleaded guilty to both counts of the superseding information pursuant to a written plea agreement. On August 27, 2013, the Court sentenced Petitioner to a total of 180 months in prison, and on September 6, 2013, Petitioner filed a notice of appeal.
On appeal, Petitioner argued that he should not have received a two-level "vulnerable victim" enhancement under U.S.S.G. § 3A1.1(b)(1), as well as an additional two-level enhancement for the use of a computer during the offense pursuant to U.S.S.G. § 2B1.3(b)(3). On September 15, 2014, the United States Court of Appeals for the Seventh Circuit affirmed, concluding that the imposition of the "vulnerable victim" enhancement under U.S.S.G. § 3A1.1(b)(1) was warranted and that any error in the imposition of the enhancement under U.S.S.G. § 2B1.3(b)(3) was harmless. See United States v. Shamsud-Din, 580 Fed.Appx. 468 (7th Cir. 2014) (unpublished). Petitioner then filed the present motion pursuant to § 2255 on December 24, 2014. Construing his pro se § 2255 motion liberally, see Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014), Petitioner maintains that his trial and appellate counsel were constitutionally ineffective for failing to challenge the Court's decision to sentence him to consecutive sentences of 90 months on each count of the superseding information.
Petitioner pleaded guilty to both counts in the superseding information pursuant to a written plea agreement, which was the result of negotiations between the parties to resolve the charges in the Northern District of Illinois along with similar interstate prostitution charges against Petitioner in the United States District Court of Oregon. In his written plea agreement, Petitioner stipulated to the offense of knowingly transporting a minor in interstate commerce with the intent that the minor engage in prostitution in violation of 18 U.S.C. § 2423(a). Also, the written plea agreement unequivocally stated that the maximum sentence for each count of the superseding information is ten years in prison for a total maximum sentence of twenty years. Petitioner signed his written plea agreement acknowledging that he had read the plea agreement, carefully reviewed each provision with his attorney, and understood and voluntarily accepted each and every term and condition of the agreement.
After Petitioner pleaded guilty on May 13, 2013, the Court held a sentencing hearing on August 21, 2013. During the sentencing hearing, the Court heard evidence, including the testimony of the vulnerable victims of Petitioner's crimes, and ruled on the parties' objections to the advisory guideline calculations and the presentence investigation report. Specifically, the Court determined that Petitioner's offense level was 31 with a criminal history category of II. Petitioner's corresponding guideline range was therefore 135 months to 168 months in prison. After hearing the parties' arguments, the Court sentenced Petitioner to 180 months for each count to run concurrently. Prior to advising Petitioner of his appellate rights, the Court explained that even if it had incorrectly calculated the guidelines, the Court would not change the sentence based on the 18 U.S.C. § 3553(a) factors.
Also at the sentencing hearing, the Court noted that Petitioner's criminal history reflected that he was a repeat sex offender against minors and was undeterred in targeting minors even after serving a prior 112 month prison sentence for similar conduct. In addition, the Court pointed out Petitioner's defiant conduct in the courtroom, including his yelling and disruptive behavior. Petitioner's conduct revealed his disrespect for the law and any kind of authority.
On August 27, 2013, prior to entering judgment, the Court held a status hearing informing the parties that because of the ten year statutory maximum on each count, Petitioner's sentence would consist of two consecutive 90 month sentences. The government had no objection to the sentence and defense counsel stated that Federal Rule of Criminal Procedure 35 gave the Court the authority to make this change.
"Relief 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." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013). In other words, under § 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 § 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"). Nevertheless, 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 § 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).
I. Ineffective Assistance of ...