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United States v. Mitchell

United States District Court, N.D. Illinois, Eastern Division

September 26, 2016



          Virginia M. Kendall, U.S. District Court Judge.

         Petitioner Ronald Mitchell moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He pled guilty to distribution of heroin and possession of a firearm as a felon and is serving a sentence of 109 months imprisonment. Mitchell argues that his attorneys' representation during plea negotiations, sentencing, and post-conviction motions violated his Sixth Amendment right to effective assistance of counsel. Mitchell received a 9 year sentence when he was facing a sentence between 14 and over 17 years under the advisory guidelines for his heroin trafficking conviction. His original attorney negotiated a plea agreement that, not only reduced that sentence, but also required the Government to drop a Section 851 drug enhancement, without which he would have been facing a mandatory minimum of 10 years. In spite of this significant benefit, Mitchell attempted to withdraw his plea of guilty. The Court provided him with a second attorney and the motion was briefed. This Court denied the motion to withdraw the plea after finding that he voluntarily entered into it after receiving effective assistance of counsel. In that plea agreement, Mitchell waived his write to file a collateral attack like this one due to the significant benefit that he was receiving in the agreement. Now, once again, he attempts to claim his attorney was ineffective in negotiating the plea and that his second attorney did not apprise him of all of his rights. Because the record reflects an appropriate level of representation which significantly benefitted Mitchell as opposed to prejudicing him, the Court denies his Section 2255 petition and also denies his motion for an evidentiary hearing. (Dkt. Nos. 1, 8.)


         On September 20, 2007, a grand jury charged Mitchell with one count of knowingly and intentionally possessing with intent to distribute 100 grams or more of heroin and one count of knowingly possessing a firearm as a convicted felon. (R. at 1.)[1] Mitchell's first attorney, Steven Greenberg, was retained by Mitchell and filed an appearance on April 9, 2012. (R. at 11.) Mitchell pled guilty to both counts of the Indictment on February 7, 2013. (R. at 32, 33.) On April 4, 2013, the Court granted Greenberg's motion to withdraw and appointed an attorney from the Federal Defender Program to represent Mitchell. (R. at 38.) The appointed attorney filed a motion to withdraw Mitchell's guilty plea on his behalf, which the Court ultimately denied. (R. at 49; United States v. Mitchell, 12 CR 150, 2013 WL 6839413 at *2-3 (N.D. Ill.Dec. 27, 2013). Thereafter, Mitchell filed several motions pro se despite having court-appointed representation, including a motion to reconsider the denial of his motion to withdraw the guilty plea. (R. at 63, 64, 65.) On March 25, 2014, Mitchell's attorney filed a motion clarifying that Mitchell no longer intended to withdraw his guilty plea. (R. at 73.) Mitchell appealed the Court's denial of his motion to withdraw the guilty plea, but voluntarily dismissed the appeal. (R. at 69, 77.) On September 9, 2014, the Court sentenced him to 109 months imprisonment as to both counts to run concurrently and four years of supervised release. (R. at 89.)


         Under Strickland v. Washington, a defendant's Sixth Amendment right to counsel is violated when (1) counsel's performance was deficient, meaning “counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment”; and (2) counsel's deficient performance prejudiced the defendant such that but for the deficiency, there is a reasonable probability that the result of the proceedings would have been different. 466 U.S. 668, 687 (1984). As to the first prong, the “[C]ourt must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance” and presume that it is a “sound trial strategy.” Id. at 689; see Menzer v. United States, 200 F.3d 1000, 1003 (7th Cir. 2000). A defendant must identify specific acts or omissions by counsel that constitute ineffective assistance, and the Court then considers whether they are outside the wide range of professionally competent assistance based on all the facts of the case. See Menzer, 200 F.3d at 1003. The Court must resist the urge to “Monday morning quarterback” by questioning counsel's decisions after the fact, but rather evaluate counsel's performance based on her perspective at the time. See Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990); Strickland, 466 U.S. at 690. The strong presumption in favor of finding counsel's performance competent grants the greatest protection to “strategic choices made after thorough investigation of law and facts relevant to plausible options[.]” Strickland, 466 U.S. at 690.

         The second Strickland prong requires the defendant to prove that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” United States v. Starnes, 14 F.3d 1207, 1210 (7th Cir. 1994) (quoting United States v. Moralez, 964 F.2d 677, 683 (7th Cir. 1992)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Where the defendant has pled guilty, in order to satisfy the prejudice prong he “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant must specifically allege more than that he would have insisted on trial but also present objective evidence that he would not have pled guilty. See Hutchings v. United States, 618 F.3d 693, 697 (7th Cir. 2010); Quintana v. Chandler, 723 F.3d 849, 856 (7th Cir. 2013).

         A petitioner in a Section 2255 action may move for an evidentiary hearing to explore the arguments asserted in her petition and “[i]f ‘the files and records of the case conclusively show that the prisoner is entitled to no relief, ' or if the allegations are too vague and conclusory, then an evidentiary hearing is unnecessary.” Torres-Chavez v. United States, No 15-1353, 2016 WL 3632692 at *3 (7th Cir. July 7, 2016) (quoting 28 U.S.C. § 2255(b)). A petitioner's burden for obtaining an evidentiary hearing is “relatively light.” Id. “Ineffective assistance claims generally require an evidentiary hearing if the record contains insufficient facts to explain counsel's actions as tactical.” Osagiede v. United States, 543 F.3d 399, 412 (7th Cir. 2008). But an evidentiary hearing is not necessary if the record conclusively shows that the petitioner is not entitled to habeas relief. See Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).


         I. Waiver of Collateral Attacks

         Mitchell neglects to acknowledge that he waived his right to collaterally attack his sentence and conviction in his plea agreement. Mitchell's signed plea agreement states that “defendant also waives his right to challenge his conviction and sentence, and the manner in which the sentence was determined, and (in any case in which the term of imprisonment and fine are within the maximums provided by the statute) his attorney's alleged failure or refusal to file a notice of appeal, in any collateral attack or future challenge, including but not limited to a motion brought under Title 28, United States Code, Section 2255. Mitchell entered into this plea due to the significant benefit of having the Government agree to drop the section 851 enhancement that would have required that he receive a ten year mandatory minimum sentence. (R. at 33, p. 15.)

         “A defendant may certainly waive the right to appeal his conviction and sentence, as well as the ability to challenge either in a collateral attack.” Dowell v. United States, 694 F.3d 898, 901 (7th Cir. 2012). To be valid, waiver of the right to collaterally attack a conviction and sentence “must be stated expressly.” United States v. Wilkozek, 822 F.3d 364, 367 (7th Cir. 2016). “[A] voluntary and knowing waiver of an appeal is valid and must be enforced” except “when the sentence exceeds the statutory maximum, when the plea or court relies on a constitutionally impermissible factor like race, or when counsel is ineffective in the negotiation of the plea agreement.” Dowell, 694 F.3d at 902. A petitioner can take advantage of the ineffective assistance of counsel exception to a waiver by claiming a Sixth Amendment violation in the negotiation of the plea agreement as a whole and need not challenge only the negotiation of the waiver portion. See Hurlow v. United States, 726 F.3d 958, 965 (7th Cir. 2013). Under this exception to a waiver, the petitioner “must allege that he entered the plea agreement based on advice of counsel that fell below constitutional standards. In other words, he must allege that the plea agreement was the product of ineffective assistance of counsel, or tainted by ineffective assistance of counsel[.]” Id. at 966-67 (internal citation omitted). Furthermore, like any contract, “for a waiver to apply, the disputed appeal or collateral attack must fall within the waiver's scope.” Dowell, 694 F.3d at 902.

         This Court has already determined that Mitchell “entered his plea voluntarily and knowingly” and nothing before the Court changes that conclusion nor does Mitchell argue to the contrary. Mitchell, 2013 WL 6839413 at *2-3 (N.D. Ill.Dec. 27, 2013). Moreover, Mitchell's sentence does not exceed the statutory maximum and there is no evidence that the plea or the Court relied on an unconstitutional factor such as race. See Dowell, 898 at 901-02. Therefore, Mitchell waived the right to collaterally attack his conviction and sentence; he maintained solely the right to assert a claim for ineffective assistance of counsel as it pertained to the waiver of his right to appeal and file a motion for collateral attack.. . See id.

         In spite of this explicit waiver, Mitchell asserts that his attorneys were constitutionally ineffective for failing to adequately communicate to him the terms and consequences of the plea agreement, failing to investigate before plea negotiations, failing to meet with him and appear in court after he plead guilty, submitting a “poorly-drawn motion” to withdraw his guilty plea, failing to file a reply in the briefing for the motion to withdraw his guilty plea, failing to object to the presentence report, and failing to conduct an evidentiary hearing at sentencing. In light of the scope of Mitchell's waiver, he waived his right to assert all of these claims. Yet, the Court will consider the alleged ineffective of counsel pertaining to the plea agreement and the plea negotiations. See Dowell, 898 at 902; see also Hurlow, 726 F.3d at 964 (“We have therefore repeatedly recognized that appellate and collateral review waivers cannot be invoked against claims that counsel was ineffective in the negotiation of the plea agreement.”); Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011) (defendant cannot waive “ineffective assistance of counsel in connection with the negotiation of [the plea] agreement”).

         II. Ineffective ...

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