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Burns v. United States

United States District Court, S.D. Illinois

February 3, 2017

GILARDI C. BURNS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          MICHAEL J. REAGAN, CHIEF JUDGE UNITED STATES DISTRICT COURT

         In October 2013, Gilardi C. Burns was indicted on a charge of being a felon in possession of a firearm. He subsequently pleaded guilty to the charge without the benefit of a plea agreement, with the parties instead filing a document they called an “Agreement to Plead Guilty.” Burns ultimately was sentenced to 18 months in prison. He did not file a direct appeal, but on June 2, 2015, he filed a petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In his petition, Burns seems to advance four basic arguments-he maintains that he received ineffective assistance of counsel, that he was deprived of due process because his predicate offense was not a felony, that the mental health treatment condition of his supervision is unlawful, and that he did not receive credit from the Bureau of Prisons for 30 days of inpatient drug treatment he was ordered to obtain while on pretrial release.

         On December 21, 2015, the United States filed a motion for an order to show cause for failure to prosecute, arguing that Burns failed to keep the Clerk of Court and the United States informed of his address as required by Local Rule 3.1(b). The United States requested that the Court issue an order to show cause that warned Burns that failing to comply with Local Rule 3.1(b) may result in dismissal of his petition. Burns was given a deadline to respond, and he did not. The United States then responded to Burns's petition, and Burns did not file a reply brief. The motion by the United States and the merits of Burns's petition are now before the Court for a ruling.

         Background

         On June 17, 2013, officers with the Fairview Heights Police Department were called to Burns's residence where they spoke to a woman who identified herself as Burns's girlfriend. The woman told police that she and Burns were arguing, and she told him she wanted to leave. When she tried, Burns retrieved a shotgun and, while holding it, told her that he would kill her if she left, leading her to call 911. The officers next spoke to Burns, who told them that he did not have any weapons inside the home and signed a form consenting to a search of his home. The consent search turned up the two shotguns, the Remington 870 and the Benelli shotguns listed in the indictment, and a box of .410 caliber shotgun shells along with some loose shells. Burns was then transported to the police station. During the ride to the station, which was audio and video recorded, Burns spontaneously volunteered to the officer driving him that he purchased the shotguns for $150 and kept them for personal protection. After waiving his Miranda rights, Burns gave a recorded statement at the police station in which he told a detective that he applied for a Firearm Owner's Identification card but was denied because he had a prior felony conviction. During the interview, Burns admitted that the shotguns were his, that he hid the shotguns in the basement while he was on the phone with 911 operators, and that he voluntarily signed the consent form to allow the police officers to search his home.

         At the time of his arrest, Burns had a previous felony conviction for Making a False Application or Affidavit. Burns was sentenced to a term of probation for the offense. On October 23, 2013, Burns was indicted for violating 18 U.S.C. §922(g)(1), often referred to as a felon in possession charge, for possessing the two shotguns while having previously been convicted of an offense punishable by a term of imprisonment exceeding one year. He was appointed a federal defender, and the defender began reviewing discovery documents and preparing a defense for Burns. Burns, however, decided to retain private counsel. Before Burns could hire counsel, at the direction of the U.S. Probation Office, he entered a 30-day residential substance abuse treatment program. New counsel for Burns, William D. Stiehl, Jr., entered his appearance on July 16, 2014. After his release from the treatment center, Burns's bond was revoked after the Magistrate Judge found that Burns possessed cocaine with intent to distribute while on pretrial release.

         On October 31, 2014, Burns pleaded guilty pursuant to a written stipulation of facts and agreement to plead guilty, both of which were signed by him, his attorney, and the Assistant U.S. Attorney. During the hearing, the petitioner represented to the undersigned that the signatures on the documents were his and that he had reviewed both with his attorney and understood them. The stipulation of facts laid out the events leading up to the Fairview Heights Police Department's discovery of the two shotguns in Burns's house in detail, including that Burns admitted hiding the shotguns and that he consented to the search of his home by police. Burns also stipulated that he had previously been convicted of a crime punishable by more than one year in prison.

         The agreement to plead guilty was not a typical plea agreement. The first paragraph explained that Burns fully understood that he was giving up certain rights by pleading guilty, including the right to file pretrial motions such as a motion to suppress. According to the agreement, the parties agreed to the elements of the offense and statutory penalties, but they did not reach an agreement as to the applicable sentencing guidelines. Burns believed that his offense level was a 13, lower than the offense level 17 that the United States calculated. Neither the United States nor Burns agreed to recommend a sentence within the applicable guidelines range. The agreement did not contain a waiver of Burns's appellate rights. At sentencing, the Court calculated Burns's guidelines based on offense level 13 and criminal history category I, resulting in a sentencing range of 12-18 months. He was sentenced to 18 months of incarceration followed by two years of supervised release. Burns did not appeal his conviction or his sentence. He did, however, file a motion to vacate or correct his sentence pursuant to 28 U.S.C. § 2255 on June 2, 2015.

         Discussion

         Burns filed his petition pursuant to 28 U.S.C. § 2255, which allows a petitioner to attack the validity of his sentence if it was “imposed in violation of the Constitution or laws of the United States, ” if the sentencing court imposed sentence “without jurisdiction, ” if the sentence was “in excess of the maximum authorized by law, ” or if the sentence is “otherwise subject to collateral attack.” Burns provides four grounds for vacating or otherwise modifying his sentence: (1) that he received ineffective assistance of counsel from his retained attorney, William Stiehl, Jr.; (2) that the predicate offense for his conviction under 18 U.S.C. § 922(g)(1) was not an offense punishable by more than one year of imprisonment; (3) that the mental health treatment condition of his supervised release is excessive and unwarranted; and (4) that the Bureau of Prisons improperly denied him credit towards his sentence for the thirty days he spent in inpatient drug treatment while he was on pretrial release.

         To make out a claim for ineffective assistance of counsel, a petitioner must show both that his counsel's performance was deficient and that, but for counsel's performance, a “reasonable probability exists that he would have received a different sentence.” Mertz v. Williams, 771 F.3d 1035, 1043-44 (7th Cir. 2014). Both aspects of this test must be demonstrated by a § 2255 petitioner to succeed on a habeas claim-if a prisoner fails to make an adequate showing on deficient performance or prejudice, he has not established ineffective assistance. United States v. Montgomery, 23 F.3d 1130, 1134 (7th Cir. 1994). A reviewing court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984).

         Burns's claim of ineffective assistance seems to allege that his attorney gave him misleading advice regarding whether to plead guilty and did not disclose the contents of the documents Burns signed, presumably referring to the stipulation of facts and the agreement to plead guilty. Burns does not specify how he was misled, but he does complain that he feels he was “abandoned” by his counsel, who he describes as uncommunicative and unfamiliar with the facts and the law applicable to his case. He also claims that he was unaware that the documents he signed “caused [him] to be found guilty” and that by signing them he waived his rights to move to suppress evidence and to appeal his conviction. (Doc. 1, p. 4). Despite Burns repeatedly noting in his petition that the agreement to plead guilty included a waiver of his appellate rights, it did not. He was free to appeal his conviction and sentence after his plea.

         Burns's vague, undeveloped ineffective assistance claim fails to establish that his attorney's performance was deficient. Burns complains about his attorney's performance leading up to his change of plea hearing, but Burns appeared before the Court at his change of plea hearing and engaged in a lengthy Rule 11 colloquy. Burns confirmed under oath that he had read and understood the plea documents that the parties presented to the Court. He also told the Court that he had gone over them with Mr. Stiehl:

Q: Okay. Were you able to read and understand the Agreement to Plead Guilty and the Stipulation ...

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