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Smithh v. United States

United States District Court, S.D. Illinois

February 15, 2017

KERRY L. SMITH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No 07-cr-40038-JPG

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE

         This 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.

         In 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.

         In his § 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 rights:

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 legitimate sources;
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 court.

         As a 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.

         Pursuant 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.

         I.§ 2255 Standard

          The 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. 2009).

         Smith's 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).

         To 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).

         To 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 ...


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