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Beard v. United States

United States District Court, S.D. Illinois

October 17, 2016

CARTEZ R. BEARD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 12-cr-30144-DRH

          MEMORANDUM AND ORDER

          DAVID R. HERNDON, DISTRICT JUDGE

         I. Introduction

         This 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.[1]

         II. Background

         On 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[2], (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.

         During 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).

         Subsequent 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 for AUUW.

         III. Law

         A 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).

         Section 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. 2007).

         Unless 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).

         Beard 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 696.

         A 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.

         IV. Argument

         a. Claims 1: Petitioner's Attorney Was Ineffective for Failing to Object to “ Many False Statements” Attributed to Beard and for “ Failing to Fight for Him” .

         Petitioner's 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 694).

         Here, 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).

         In the 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 ...


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