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Weldon v. United States

United States District Court, S.D. Illinois

April 17, 2015

SCOTT WELDON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM and ORDER

DAVID R. HERNDON, District Judge.

I. Introduction and Background

This matter is before the Court on Weldon's motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Docs. 1, 5 & 14). The government opposes the motion (Doc. 12). Weldon filed a reply and other pleadings relevant to motion to vacate (Docs. 14, 15, 16 & 17). Based on the following, the Court denies Weldon's motion. 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; 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). In addition, the Court finds that appointed counsel is not in the interest of justice and that counsel would not assist Weldon in this matter. The Criminal Justice Act, 18 U.S.C. § 3006A(a)(2)(B), permits the court to appoint counsel for an indigent movant seeking relief under 28 U.S.C. § 2255. To do so, the court must find that the appointment of counsel would serve "the interests of justice" and that the petitioner is "financially eligible." 18 U.S.C. § 3006A(a)(2). Appointment of counsel for a § 2255 movant is within the district court's discretion and is governed by standards similar to those followed in civil cases with plaintiffs proceeding in forma pauperis. See Wilson v. Duckworth, 716 F.2d 415, 418 (7th Cir. 1983); Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992). "Due process does not require appointment of counsel for indigent prisoners pursuing... federal habeas relief." Pruitt v. Mote, 503 F.3d 647, 657 (7th Cir. 2007). Indigent civil litigants have no constitutional or statutory right to be represented by counsel in federal court. Id. at 649. The decision is a discretionary one. Id. at 653; Jackson, 953 F.2d at 1071. A threshold question is whether the litigant has attempted to obtain counsel or has been effectively precluded from doing so. Pruitt, 503 F.3d at 654-55; Jackson, 953 F.2d at 1072-73. Once the petitioner has established that his reasonable efforts to obtain counsel were unsuccessful the court conducts "a two-fold inquiry into both the difficulty of the plaintiff's claims and the plaintiff's competence to litigate those claims himself." Pruitt, 503 F.3d at 655. The inquiries are intertwined; "the question is whether the difficulty of the case-factually and legally-exceeds the particular [party's] capacity as a layperson to coherently present it to the judge or jury himself." Id. Whether a party appears competent to litigate his own claims, given their difficulty, includes consideration of all parts of litigation, including evidence gathering and responding to motions. Id. Regarding the party's ability to litigate the case, the court should review "whatever relevant evidence is available on the question, " including pleadings and communications from the party. Id. Reviewing the record, the Court finds that Weldon has not established that he has attempted to obtain counsel or that he has been has been effectively precluded from doing so. Further, the Court finds that Weldon presented the issues coherently and thoroughly throughout his pleadings. Therefore, the Court denies Weldon's motion for evidentiary hearing and to appoint counsel (Doc. 16).

On April 21, 2010, the grand jury charged Weldon and Andrea Fields with distribution of a controlled substance, heroin, to David L. Roth which resulted in Roth's death in violation of Title 21 U.S.C. § 841(a)(1) and (b)(1)(C). See United States v. Weldon, et al., 10-30066-DRH; Doc. 1. On May 5, 2011, Weldon, pled guilty to the charges pursuant to a plea agreement. Id. Docs. 55, 56, 59 & 60. The plea agreement provided in part: "Defendant states that he is actually guilty of and will enter of plea of guilty to the one-count indictment which charges Distribution of a Controlled Substance Resulting in Death, ' in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C)." Id. at Doc. 55, p. 5. The plea agreement also stated: "FIRST: That the Defendant knowingly distributed a controlled substance; and SECOND: That the ingestion of the controlled substance distributed by the Defendant caused the death of another person. The Defendant agrees and admits that his conduct violated these essential elements of the offense." Id. Further, Weldon signed a stipulation of facts that provided the following:

The Defendant and the Government agree and stipulate as follows:
1. On or about January 22, 2010, David L. Roth drove Scott Weldon and Andrea Fields, Weldon's girlfriend, to East St. Louis in his car to purchase heroin for the three of them to use.
2. Several blocks from the Mobile gas station on State Street in East St. Louis at a prearranged location, Roth pulled his car to the side of the road behind a car that was already parked there. Weldon then got out of the front passenger's seat of Roth's car and walked up to the front driver's side door of the other car. Weldon then purchased heroin from the driver of the other car, while Roth and Fields sat in his car and watched, with $120.00 in cash which had been provided to Weldon by Roth for this purpose.
3. Moments later, Weldon returned to Roth's car with the heroin, and Roth drove the couple back to Roth's residence. Immediately upon their return to the residence, Fields mixed the raw heroin with water and divided the mixture into thirds for each of them to inject. All three individuals had their own needle and each received approximately 30 cc of the water and heroin mixture.
4. Fields first injected Roth with his one-third share of the heroin, then herself and then Weldon.
5. Roth later died from a heroin overdose. According to the Medical Examiner, the heroin Roth ingested would have caused his death even without the other drugs in Roth's system.

Id. at Doc. 56.

On August 22, 2011, co-defendant Fields went to trial on the charges contained in the indictment. After a three-day jury trial, the jury found Fields not guilty of the charges (Docs. 87 & 89). The Court entered a judgment of acquittal as to Fields on August 24, 2011 (Doc. 94).

Thereafter, on September 16, 2011, the Court sentenced Weldon to 96 months imprisonment. Id. at Doc. 96. Judgment reflecting the same was entered on September 19, 2011 (Doc. 98). Weldon did not appeal his sentence or conviction; nor did he file a 28 U.S.C. § 2255 motion at that time or within a year of judgment. During his criminal proceedings, Assistant Federal Public Defender Todd Schultz represented Weldon.

On June 16, 2014, Weldon filed this § 2255 motion (Doc. 1). Weldon raises three claims: (1) actual innocence in light of the Supreme Court's new rule and statutory interpretation in Burrage v. United States, 134 S.Ct. 881 (2014) for causation, the petitioner is actually innocent of the charged indictment; (2) ineffective assistance of counsel as to the guilty plea; and (3) change in the law that the Sixth Amendment right to a jury trial requires that any facts which would increase a mandatory minimum ...


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