United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, District Judge.
A jury convicted Petitioner John Braboy in April 2007 of possession of cocaine and conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. At sentencing, this court determined an adjusted offense level of 36 and a criminal history category of III, producing a Sentencing Guidelines range of 235 to 293 months. The court imposed a sentence of 240 months in prison.
On August 24, 2010, the Court of Appeals affirmed Petitioner's conviction, but ordered a limited remand to allow this court the opportunity to reconsider his sentence in light of Kimbrough v. United States, 552 U.S. 85 (2007), which held that district courts are free to deviate from the Sentencing Guidelines' then-prevailing 100-to-one ratio for crack cocaine versus powder cocaine sentences. See United States v. Martin, 618 F.3d 705, 739 (7th Cir. 2010). The limited remand yielded no relief from Braboy's 240-month sentence. In a written ruling, the court noted that the Guideline calculations for Mr. Braboy had been "determined by reference to powder cocaine, not crack cocaine, " and that in imposing his sentence, the court had already "considered Brayboy's [sic] history and his apparently sincere desire to change." (Order on Remand, United States v. Martin et al ., 04-cr-495-42 , 6-7.) The Court of Appeals again affirmed, noting that "we invited the parties to file submissions addressing the appropriate disposition of the appeal in light of the district court's decision. None of the parties acted on the invitation." United States v. Martin, Nos. 07-2272, 07-4010, 07-3893, 07-3940, 2011 WL 5519811, *2 (7th Cir. Nov. 14, 2011).
Petitioner now seeks relief pursuant to 28 U.S.C. § 2255 . He presents six claims of alleged ineffective assistance of counsel: (1) his lawyer abandoned him after this court's 2011 limited remand decision; (2) his lawyer failed to argue that the Guideline calculations at sentencing were "invalid" under United States v. O'Brien, 560 U.S. 218 (2010); (3) his lawyer failed to argue under Kimbrough for a lower powder cocaine sentence on remand; (4) his lawyer failed to preserve his right of allocution on remand; (5) his lawyer failed to argue at sentencing that his parolee status was an "element" of the offense rather than a "sentencing factor" and therefore must have been found by the jury at trial rather than by the court at sentencing; and (6) his lawyer did not adequately advise him about a plea deal. The government contends that none of these claims have merit. This court agrees with respect to five of these claims, but finds that a hearing will be necessary to determine the plausibility of Petitioner's abandonment claim.
Petitioner Braboy seeks relief from his conviction and sentence pursuant to 28 U.S.C. § 2255(a), which allows a prisoner convicted in federal court to seek to vacate, set aside, or correct his sentence. Relief under § 2255 relief "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). All six of Mr. Braboy's § 2255 arguments allege ineffective assistance of counsel, a violation of his Sixth Amendment rights. In general, to prevail on such a claim, a petitioner "must show that his attorney's performance was objectively deficient-in other words, that it fell outside the wide range of competent representation-and that he was prejudiced by the subpar representation;" United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687-96 (1984)). Prejudice here means that, but for counsel's deficiencies, "the result of the proceedings below would have been different." Id.
The Court of Appeals and Supreme Court have both emphasized that ineffective assistance claims are difficult to prove. "Only if an ignored issue is clearly stronger' than the arguments raised on appeal will the attorney's performance be considered constitutionally deficient." Suggs v. United States, 513 F.3d 675, 678 (7th Cir. 2008). See also United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005) (holding that, so long as an attorney's "decision was sound at the time it was made, " there is no ineffective assistance claim); Strickland, 466 U.S. at 690 (holding that counsel should be "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment"). The burden to "show that counsel's performance was deficient" rests on the criminal defendant. Strickland, 466 U.S. at 687. See also Jones v. Butler, 778 F.3d 575, 583 (7th Cir. 2015).
I. Abandonment after Remand (Claim One)
Petitioner contends that his attorney on appeal, Kent Carlson, did not notify him that the Court of Appeals had invited the parties to file submissions in response to this court's decision on limited remand not to resentence, and thus that counsel had effectively abandoned him at a "critical stage of the proceeding." See United States v. Cronic, 466 U.S. 648, 659 (1984). According to Mr. Braboy, Mr. Carlson "simply sent him the District Court's ruling and withdrew from further representation..." (Memorandum in Support of Petitioner's Motion (hereinafter "Mem. in Supp." , at 5.)
At the time of this court's limited remand decision, the Court of Appeals retained jurisdiction, and Braboy's direct appeal remained pending. Braboy therefore retained his Sixth Amendment right to counsel on appeal. Lafler v. Cooper, 132 S.Ct. 1376, 1387 (2012); Resendez v. Smith, 692 F.3d 623, 626 (7th Cir. 2012). Thus, if Braboy wished to challenge this court's determination, it appears that counsel was constitutionally obligated either to do so or to file an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967) (holding that when counsel finds a defendant's case "to be wholly frivolous, " she may request permission to withdraw but must also file "a brief referring to anything in the record that might arguably support the appeal"). See also United States v. Longstreet, 669 F.3d 834, 838 (7th Cir. 2012) (granting withdrawal permission to counsel, who filed an Anders brief regarding the district court's decision not to resentence pursuant to Kimbrough ). Notably, where a petitioner alleges abandonment, he may be entitled to relief even without showing that his appeal would have been successful. The Supreme Court has "held that the complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because the adversary process itself' has been rendered presumptively unreliable.'" Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000) ( citing United States v. Cronic, 466 U.S. 648, 659 (1984)); see also Smith v. Robbins, 528 U.S. 259, 286 (2000); Penson v. Ohio, 488 U.S. 75, 88-89 (1988).
The presumption of prejudice is not the end of the inquiry, however. "In order to show prejudice in these circumstances, a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id. at 484. Whether Braboy can meet this test is uncertain; in light of the fact that his sentence was unaffected by the powder/crack cocaine sentence disparity, it is possible that counsel did consult with him about this and that Braboy made a conscious decision that any challenge would be fruitless. The court will convene a brief hearing to determine whether Braboy is entitled to relief on this basis.
II. The Effect of O'Brien on Braboy's Sentence (Claims Two and Five)
The Sixth Amendment requires that facts which affect a criminal defendant's statutory maximum sentence-so-called "elements of the offense"-be proven to the jury beyond a reasonable doubt rather than found by the trial judge on a preponderance-of-the-evidence basis. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Braboy urges that the Supreme Court's decision in United States v. O'Brien, 560 U.S. 218 (2010), extends Apprendi and establishes that this court acted improperly in making its own findings on sentencing factors such as drug quantity, reckless endangerment, and Braboy's parolee status.
The argument based on O'Brien requires little discussion. In that case, the Supreme Court reviewed a conviction for use of a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A)(i). The firearms statute provides that where a machinegun is the weapon at issue, the defendant found guilty faces a mandatory minimum sentence of thirty years. Id. § 924(c)(1)(B)(ii). The government had indicted O'Brien under that machinegun section, but withdrew the charge because it could not prove, beyond a reasonable doubt, that a machinegun was involved. It nevertheless argued on appeal that the district judge erred in imposing a sentence of just 84 months because the judge could find, based on a preponderance of the evidence, that the weapon was indeed a machinegun. The Supreme Court disagreed with that contention, holding that the fact that the firearm was a machinegun is an element of the offense, not a sentencing factor, and must therefore be proved to the jury beyond a reasonable doubt. O'Brien addressed the proof required when elements of an offense increase the mandatory minimum or maximum of a sentence. O'Brien, 560 U.S. at 224. As the Supreme Court explained, "while ...