United States District Court, S.D. Illinois
KEVIN L. BROWN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
PHIL GILBERT U.S. DISTRICT JUDGE
matter comes before the Court on petitioner Kevin L.
Brown's Motion to Vacate, Set Aside or Correct Sentence
pursuant to 28 U.S.C. § 2255 (Doc. 1). Also before the
Court is Assistant Federal Defender Judith A. Kuenneke's
Motion (Doc. 8) to Withdraw as counsel for petitioner and
petitioner's Motion [Doc. 9] to Amend his § 2255.
February 27, 2015, Mr. Brown pleaded guilty to conspiracy to
manufacture methamphetamine in violation of 21 U.S.C. §
846. See United States v. Brown, Case No.
14-cr-40098 (Doc. 21). On May 27, 2015, the undersigned Judge
sentenced Mr. Brown to 188 months imprisonment, four years
supervised release, a $100 special assessment, and a $200
fine. (Doc. 30, 14-cr-40098). Mr. Brown filed a direct
appeal. His appellate counsel filed an Anders
brief and requested to withdrawn. The
United States Court of Appeals granted appellate
counsel's motion to withdraw and dismissed the
petitioner's appeal on January 7, 2016.
Brown's § 2255 motion was timely filed on June 28,
2016. In it, Mr. Brown makes the follows claims:
a. Ground One - that his trial counsel was ineffective for
failing to negotiate a written plea agreement and failed to
argue against the drug quantity attributed to the petitioner
in the presentencing report;
b. Ground Two - also that his trial counsel was ineffective
for failing to negotiate a plea agreement that could have
resulted in a lower drug quantity amount being attributed to
the petitioner; and
c. Ground Three - that the Supreme Court's holding in
Johnson v. United States, 135 S.Ct. 2551 (2015) and
United States v. Welch, 136 S.Ct. 1257 (2016),
required that he should be resentenced without a career
offender enhancement. The Court will now consider whether Mr.
Brown's allegations survive this threshold review.
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, “[h]abeas corpus relief under 28 U.S.C. §
2255 is reserved for extraordinary situations.”
Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.
1996). “Relief under § 2255 is available only for
errors of constitutional or jurisdictional magnitude, or
where the error represents a fundamental defect which
inherently results in a complete miscarriage of
justice.” Kelly v. United States, 29 F.3d
1107, 1112 (7th Cir. 1994) (quotations omitted). 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).
Sixth Amendment to the Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right
. . . to have the Assistance of Counsel for his
defense.” 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 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), cert. denied, 130 S.Ct.
2431 (2010); 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.
United States v. Jones, 635 F.3d 909, 915 (7th Cir.
2011); Fountain, 211 F.3d at 434; 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
failure to hear a claim for ineffective assistance of counsel
in a § 2255 motion is generally considered to work a
fundamental miscarriage of justice because often such claims
can be heard in no other forum. They are rarely appropriate
for direct review since they often turn on events not
contained in the record of a criminal proceeding.
Massaro, 538 U.S. at 504-05; Fountain, 211
F.3d 433-34. In addition, the district court before which the
original criminal trial occurred, not an appellate court, is
in the best position to initially make the determination
about the effectiveness of counsel in a particular trial and
potential prejudice that stemmed from counsel's