United States District Court, S.D. Illinois
CARTEZ R. BEARD, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. 12-cr-30144-DRH
MEMORANDUM AND ORDER
R. HERNDON, DISTRICT JUDGE
matter is before the Court on petitioner Cartez R.
Beard's motion to vacate, set aside, or correct sentence,
pursuant to 28 U.S.C. § 2255 (Doc. 1). The government
filed its response in opposition of Beard's § 2255
petition (Doc. 9). Additionally, Beard filed a motion for
leave to amend the § 2255 (Doc. 5). Upon granting the
motion to amend, and given the difficult legal issues
involved, the Court found this to be an appropriate case to
appoint counsel, specifically for the purposes of amending
Beard's petition with regard to the applicability of the
Aggravated Unlawful Use of a Weapon statute 720 ILCS
5/24-1.6(a)(1) to Beard's claims (Doc. 7). Thereafter,
Beard's counsel filed an amended § 2255 petition
(Doc. 15), to which the government responded (Doc. 24). For
the following reasons, petitioner's motion for relief
pursuant to 28 U.S.C. § 2255 is DENIED.
September 27, 2012, petitioner pleaded guilty to being a
felon in possession of a firearm. The predicate felony was
for Aggravated Unlawful Use of a Weapon (AUUW), in violation
of 720 ILCS 5/24-1.6(a)(1). Pursuant to 18 U.S.C. §
922(g)(1), this Court sentenced petitioner to 96 months
(United States v. Beard,
12-cr-30144-DRH, (Doc. 49)). Petitioner was released on
bond prior to pleading guilty, and during that time, he was
arrested for shooting a woman who was nine months pregnant at
the time. At his sentencing he denied shooting her, despite
the victim's presence and testimony.
the proceedings, Assistant Federal Public Defender Thomas
Gabel represented Beard, and filed a notice of appeal on his
behalf (Cr. Doc 51). On appeal, Beard argued that the Court
erred in denying a reduction for acceptance in
responsibility. On the basis of controlling precedent and
Beard's unwillingness to cease criminal activity, the
Seventh Circuit affirmed this Court's judgment. See
United States of America v. Beard, No. 13-1603 (7th
Cir. Nov. 20, 2013) (citing United States v.
Sellers, 595 F.3d 791, 793 (7th Cir. 2010). Petitioner
also argued that the Court imposed an unreasonable prison
sentence of 96 months, but the Seventh Circuit affirmed the
sentence. The Seventh Circuit dismissed Beard's appeal
stating that this Court “offered adequate reasons
consistent with the statutory factors in 18 U.S.C. §
3553(a).” See United States of America v.
Beard, No. 13-1603 (7th Cir. Nov. 2013).
to the dismissal of his appeal, on August 15, 2014, Beard
filed his petition seeking relief under 28 U.S.C. § 2255
(Doc. 1). In his § 2255 petition and supplement, Beard
raises four claims: (1) ineffective assistance of counsel for
failing to reject alleged “false statements that placed
upon [Beard]”; and (2) failure to be appointed a new
attorney on appeal; (3) failure to receive acceptance of
responsibility points to toward lowering his sentence; and
(4) Beard is actually innocent of the §922(g)(1)
conviction based on the invalidity of his previous sentence
prisoner may move to vacate, set aside or correct his
sentence if he claims “the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a).
2255 is an extraordinary remedy because it asks the district
court “to reopen the criminal process to a person who
has already had an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th
Cir. 2007). Accordingly, relief under Section 2255 is
“reserved for extraordinary situations, ”
Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.
1996) (citing Brecht v. Abrahamson, 507 U.S. 619,
633-34 (1993)), as a collateral attack pursuant to Section
2255 is not a substitute for a direct appeal. Varela v.
United States, 481 F.3d 932, 935 (7th Cir.
a movant demonstrates changed circumstances in fact or law,
he may not raise issues already decided or waived on direct
appeal. Olmstead v. United States, 55 F.3d 316, 319
(7th Cir. 1995). A petitioner cannot raise constitutional
issues that he could have, but did not directly appeal,
unless he shows good cause for, and actual prejudice from,
his failure to raise them on appeal, or unless failure to
consider the claim would result in a fundamental miscarriage
of justice. Bousley v. United States, 523 U.S. 614,
622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87
(1977); Fountain v. United States, 211 F.3d 429, 433
(7th Cir. 2000). Likewise, a Section 2255 motion cannot
pursue non-constitutional issues that were not raised on
direct appeal regardless of cause and prejudice. Lanier
v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The
only way such issues could be heard in the Section 2255
context is if the alleged error of law represents “a
fundamental defect which inherently results in a complete
miscarriage of justice.” United States v.
Addonizio, 442 U.S. 178, 185 (1979).
raises four claims, some of which he purports to be claims of
ineffective assistance of counsel. To succeed on an
ineffective assistance of counsel claim, a petitioner must
demonstrate (1) his attorney's performance “fell
below an objective standard of reasonableness, ” and
(2) “but for counsel's unprofessional errors the
result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984).
To satisfy the first prong, “the Court must determine
whether, in light of all the circumstances, the identified
acts or omissions were outside the wide range of
professionally competent assistance.” Id. at
690. To satisfy the second prong, a petitioner must
demonstrate to a “reasonable probability” that
without the unprofessional errors, “the result of the
proceeding would have been different.” Id. at
district court's analysis begins with a “strong
presumption that the defendant's attorney rendered
adequate representation of his client.” United
States v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000).
Thus, a petitioner must overcome a heavy burden to prove that
his attorney was constitutionally deficient. Shell v.
United States, 448 F.3d 951, 955 (7th Cir. 2006). In
order to establish that counsel's performance was
deficient, the defendant must show errors so serious that
“counsel was not functioning as the ‘counsel'
guaranteed the defendant by the Sixth Amendment.”
Atkins v. Zenk, 667 F.3d 939, 944 (7th Cir. 2012).
The Court now turns to Beard's claims.
Claims 1: Petitioner's Attorney Was Ineffective for
Failing to Object to “ Many False Statements”
Attributed to Beard and for “ Failing to Fight for
first ground for relief asserts a claim for ineffective
performance by his attorney for failing to object to the
various “false statements” that were attributed
to him during his case, and that his attorney “did not
fight for him” (Doc.1). Regarding the first prong of
the Strickland test, counsel's performance must
be evaluated keeping in mind that an attorney's trial
strategies are a matter of professional judgment and often
turn on facts not contained in the trial record.
Strickland, 466 U.S. at 689. The petitioner's
burden is heavy because the Strickland test is
“highly deferential to counsel, presuming reasonable
judgment and declining to second guess strategic
choices.” United States v. Shukri, 207 F.3d
412, 418 (7th Cir. 2000) (quotations omitted). With regard to
the second prong of Strickland, the petitioner must
show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceedings would have been different. Adams v.
Bertrand, 453 F.3d 428, 435 (7th Cir.2006). “A
reasonable probability is defined as one that is sufficient
to undermine confidence in an outcome.” Adams,
453 F.3d at 435 (citing Strickland, 466 U.S. at
Beard fails to identify which “false statements”
were attributed to him without objection from his counsel, or
when during his case those statements were made. Beard also
fails to explain how his lawyer failed to “fight for
him, ” offering nothing more than his unsupported
allegation. These general allegations are insufficient to
support habeas corpus relief. See e.g., Richardson v.
United States, 379 F.3d 485, 488 (7th Cir.2004) (denying
§ 2255 claim based upon failure to investigate where
defendant provided no details, evidence, or allegations
regarding that claim). “An ineffective assistance of
counsel claim cannot stand on a blank record, peppered with
the defendant's own unsupported allegations of
misconduct.” United States v. Hodges, 259 F.3d
655, 660 (7th Cir. 2001); Fuller v. United States,
398 F.3d 644, 652 (7th Cir. 2005)(finding that a claim of
ineffective assistance unsupported by “actual proof of
[his] allegations” cannot meet the threshold
requirement for purposes of § 2255).
government's response to Beard's petition, it was
believed that after review of the record, “it is
reasonable to infer that Beard's contention refers to the
testimony of Makeela King presented at his sentencing
hearing” (Crim. Docs. 26 & 45). Even using such
inferences, and ...