United States District Court, S.D. Illinois
KERRY L. SMITH, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No 07-cr-40038-JPG
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on petitioner Kerry L.
Smith's motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The
petitioner was charged with conspiring to distribute and
possess with intent to distribute 100 kilograms or more of
marihuana (Count 1), engaging in a monetary transaction worth
more than $10, 000 in criminally derived property (Count 2),
social security fraud (Count 3) and making false statements
(Counts 4 and 5). The petitioner pled guilty to Counts 3, 4
and 5 in an open plea on November 3, 2011, before this Court,
and to Counts 1 and 2 in an open plea on March 8, 2012, by
written consent before now-retired Magistrate Judge Philip M.
Frazier, who then recommended that the Court accept the plea.
Having received no objection to Magistrate Judge
Frazier's recommendation, on May 31, 2012, the Court
accepted the petitioner's guilty plea to Counts 1 and 2.
February 2013 the Court sentenced the petitioner to serve 150
months in prison. In connection with his conviction, the
Court ordered the petitioner to pay restitution and ordered
the forfeiture of some of the petitioner's personal and
real property as property constituting, or derived from, the
proceeds of his commission of Count 1. The petitioner
appealed his conviction to the United States Court of Appeals
for the Seventh Circuit, which on October 24, 2014, affirmed
the Court's judgment. See United States v.
Smith, 770 F.3d 628 (7th Cir. 2014). The petitioner did
not seek a writ of certiorari from the United States
Supreme Court. In September 2015, the Court reduced the
petitioner's sentence of imprisonment to 125 months based
on the retroactive application of Amendment 782 to the United
States Sentencing Guideline Manual. The petitioner is
currently serving his term of supervised release.
§ 2255 motion, timely filed on December 28, 2015, the
petitioner raises the following claims of ineffective
assistance of counsel in violation of his Sixth Amendment
Ground 1: In connection with the restitution and forfeiture
proceedings, counsel Beau Brindley failed to investigate and
present evidence that the property forfeited was derived from
Ground 2: Brindley failed to interview witnesses (Jewell
Marshall, Lanenia Kind, Tyree Neal, Sr., Catrina Smith and
others) who would have testified at trial in Smith's
favor and was not prepared to go to trial, forcing Smith to
plead guilty when he did not want to; and
Ground 3: Brindley failed to communicate with Smith about
relevant matters relating to his case, including not
reviewing the plea agreement with him until the morning of
his change of plea hearing, not explaining the effect of the
plea agreement or his right to have the plea taken by an
Article III judge, refusing to respond to letters and phone
calls or to visit Smith, and sometimes failing to appear in
preliminary matter, the Court notes that it has jurisdiction
to entertain this motion even though Smith is serving his
term of supervised release. A § 2255 motion may only be
brought by “[a] prisoner in custody under sentence of a
court established by Act of Congress.” 28 U.S.C. §
2255(a). Courts have interpreted this custody requirement to
mean the petitioner must have significant restraints on his
personal liberty, but not necessarily that he be
incarcerated. Virsnieks v. Smith, 521 F.3d 707,
717-18 (7th Cir. 2008). Supervised release imposes sufficient
restraints to be considered a form of custody sufficient to
allow a petitioner to bring a § 2255 motion. See
Clarke v. United States, 703 F.3d 1098, 1101 (7th Cir.
2013). Therefore, the Court has jurisdiction to decide this
§ 2255 motion.
to Rule 4(b) of the Rules Governing Section 2255 Proceedings
for the United States District Courts, the Court has
determined that it is plain from the motion and the record of
the prior proceedings that the petitioner is not entitled to
relief on any grounds asserted.
Court must grant a § 2255 motion when a defendant's
“sentence was imposed in violation of the Constitution
or laws of the United States.” 28 U.S.C. § 2255.
However, “[r]elief under § 2255 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.'” United States v.
Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting
Blake v. United States, 723 F.3d 870, 878-79 (7th
Cir. 2013)), cert. denied, 135 S.Ct. 1574 (2015). It
is proper to deny a § 2255 motion without an evidentiary
hearing if “the motion and the files and records of the
case conclusively demonstrate that the prisoner is entitled
to no relief.” 28 U.S.C. § 2255(b); see
Sandoval v. United States, 574 F.3d 847, 850 (7th Cir.
arguments for § 2255 relief all allege his counsel was
constitutionally ineffective in violation of his Sixth
Amendment rights. The Sixth Amendment provides that
“[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for
his defence.” U.S. Const. amend. VI. This right to
assistance of counsel encompasses the right to
effective assistance of counsel. McMann v.
Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson
v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). A party
claiming ineffective assistance of counsel bears the burden
of showing (1) that his counsel's performance fell below
objective standards for reasonably effective representation
and (2) that this deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 688-94
(1984); United States v. Jones, 635 F.3d 909, 915
(7th Cir. 2011); Wyatt v. United States, 574 F.3d
455, 457 (7th Cir. 2009); Fountain v. United States,
211 F.3d 429, 434 (7th Cir. 2000).
satisfy the first prong of the Strickland test, the
petitioner must direct the Court to specific acts or
omissions of his counsel. Wyatt, 574 F.3d at 458.
The Court must then consider whether, in light of all of the
circumstances, counsel's performance was outside the wide
range of professionally competent assistance. Id.
The Court's review of counsel's performance must be
“highly deferential[, ] . . . indulg[ing] a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Strickland, 466 U.S. at 689; accord Wyatt,
574 F.3d at 458. 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 Court cannot become a “Monday morning
quarterback.” Harris v. Reed, 894 F.2d 871,
877 (7th Cir. 1990).
satisfy the second prong of the Strickland test, the
plaintiff must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceedings would have been different, such that the
proceedings were fundamentally unfair or unreliable.
Jones, 635 F.3d at 915; Fountain, 211 F.3d
at 434; Adams v. Bertrand, 453 F.3d 428, 435 (7th
Cir. 2006). “A reasonable probability is defined as one