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Dickerson v. United States

United States District Court, C.D. Illinois, Urbana Division

June 6, 2017




         Before the Court is Petitioner Dickerson's application to vacate his sentence pursuant to 28 U.S.C. § 2255, ECF No. 1. For the following reasons, the application is DENIED.


         Dickerson sold crack cocaine regularly to Debra Vankuikien in Kankakee, Illinois, from 2008 until his arrest in September 2010. In August 2010, Vankuiken sought permission from Dickerson to pay him for cocaine with firearms instead of money. Dickerson agreed, and Vankuiken gave him five stolen guns in exchange for some crack cocaine. The police then arrested Vankuiken because they suspected her of stealing the guns. She cooperated with them and directed officers to the storage unit where Dickerson kept the guns. Authorities discovered three machine guns (two AR-15s and an Uzi) and two handguns. Later, under the supervision and at the direction of the police, Vankuiken bought more cocaine from Dickerson, whose apartments were then searched. Police recovered 25.6 grams of cocaine from one apartment and 100 grams of crack cocaine and a loaded revolver from the other.

         Dickerson was charged by federal indictment on November 3, 2010 with (I) possession with intent to distribute twenty-eight or more grams of a Schedule II controlled substance (crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); (II) possession of the two pistols, the rifles, and the revolver in furtherance of the possession with intent to distribute and distribution of the crack cocaine, 18 U.S.C. 924(c); and (III) possessing the handguns, the revolver, and the Uzi after having sustained a felony conviction, 18 U.S.C. § 922(g)(1). Indictment, CR ECF No. 1. On February 9, 2011, the government filed a superseding indictment, CR ECF No. 13, which charged the second count as a violation of both 18 U.S.C. § 924(c)(1)(A) and § 924(c)(1)(B)(ii), the latter of which provides for a mandatory minimum sentence of thirty years' imprisonment for the possession of machine guns in furtherance of drug trafficking crimes. Pursuant to 21 U.S.C. § 851(a), the government filed an information indicating that it would seek to rely on Dickerson's prior drug possession convictions, of which there were three, in seeking an enhanced sentence on Count I of the superseding indictment. Informations, CR ECF Nos. 16, 17.

         The case proceeded to jury trial on June 7, 2011. Jun. 7 2011 Minute Entry, CR Docket. The jury found Dickerson guilty on all counts. Jury Verdicts, ECF No. 44. The Court sentenced him to a term of 151 months on Count I and 120 months on Count III, to run concurrently, and to 360 months on Count II, to run consecutively to the other counts as required by 18 U.S.C. § 924(c)(1)(D)(ii). Judgment 2, CR ECF No. 54. Dickerson appealed. See United States v. Dickerson, 705 F.3d 683 (7th Cir. 2013). On appeal, he argued that 18 U.S.C. § 924(c) does not cover situations where guns were exchanged for drugs, that the district court erred in so instructing the jury, and that the government's evidence of the offense date offered at trial did not match the date charged in the indictment. Id. at 686. On February 19, 2013, the Seventh Circuit rejected his arguments and affirmed the judgment in whole. Id. at 688-94. On October 7, 2013, the Supreme Court denied Dickerson's petition for a writ of certiorari. Dickerson v. United States, 134 S.Ct. 166 (2013). Dickerson's application for writ of habeas corpus pursuant to 28 U.S.C. § 2255 followed timely on October 2, 2014.


          I. Legal Standard on a Motion to Vacate Sentence Under 28 U.S.C. § 2255

         28 U.S.C. § 2255, “the federal prisoner's substitute for habeas corpus, ” Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012), permits a prisoner incarcerated pursuant to an Act of Congress to seek that his sentence be vacated, set aside, or corrected if “the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a). See Webster v. Daniels, 784 F.3d 1123, 1124 (7th Cir. 2015) (“As a rule, the remedy afforded by section 2255 functions as an effective substitute for the writ of habeas corpus that it largely replaced.”). However, “[a] claim cannot be raised for the first time in a § 2255 motion if it could have been raised at trial or on direct appeal [and was not].” McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016) (citing Sandoval v. United States, 574 F.3d 847, 850 (7th Cir.2009)), cert. denied, 137 S.Ct. 260 (2016). Such procedurally defaulted claims may only be raised on collateral attack if an applicant can show good cause for the omission, and that he was prejudiced thereby. Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008).

         When presented with a § 2255 motion, a district court must hold an evidentiary hearing on the applicant's claim, and make findings of fact and conclusions of law. 28 U.S.C. § 2255(b). However, “[i]t is well-established that a district court need not grant an evidentiary hearing in all § 2255 cases.” Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015). The court need not hold a hearing if the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Nor must the court hold a hearing when the petitioner's allegations are “vague, conclusory, or palpably incredible rather than detailed and specific.” Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006) (quoting Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001)). However, when a prisoner alleges fact that, if proven, would entitle him to relief, a hearing must be held. Kafo, 467 F.3d at 1067.

         II. Analysis

         Dickerson argues that his conviction should be set aside. Pet. 19. In support, he alleges that his counsel's assistance was ineffective (I) because counsel did not conduct an “independent investigation of the facts” before advising him to stand trial, did not adequately advise him about the potential consequences of standing trial, and did not attempt to negotiate a favorable plea deal that would have resulted in the government not filing § 851 notice of enhancement and dismissal of Count II, id. at 11-15; and (II) that had he been appropriately advised, he would have pleaded guilty and received a lesser sentence as part of a plea deal, id. at 16-17. The government responds that counsel's performance was not ineffective, Resp. 5-7; and that even if the performance was ineffective, Dickerson was not prejudiced by the deficiency, id. at 7-9.

         Dickerson did not raise the matter of his attorney's ineffectiveness on direct appeal. However, the Sixth Amendment to the Constitution guarantees criminal defendants access to the effective assistance of counsel, McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970), and “[a]ttorney error that constitutes ineffective assistance of counsel is cause to set aside a procedural default.” Franklin v. Gilmore, 188 F.3d 877, 883 (7th Cir. 1999). Indeed, “[i]n light of the way our system has developed, in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.” Massaro v. United States, 538 U.S. 500, 505 (2003). This is so because the trial record on direct appeal is often not sufficiently developed to decide questions of counsel's ineffectiveness, whereas a district court proceeding under § 2255 is able to expand the record if necessary. Id; see also United States v. Flores, 739 F.3d 337, 341-42 (7th Cir. 2014) (“By arguing ineffective assistance on direct appeal the defendant relinquishes any opportunity to obtain relief on collateral review, even though a motion under § 2255 affords the only realistic chance of success.”).

         Whether an attorney has rendered ineffective assistance sufficient to set aside a procedural default is evaluated under the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). The test requires a petitioner to show “(1) that his counsel's performance was so deficient as to fall below an objective standard of reasonableness under ‘prevailing professional norms'; and (2) that the deficient performance so prejudiced the defense as to deny the defendant a fair trial.” Lee v. Davis, 328 F.3d 896, 900 (7th Cir. 2003) (quoting Strickland, 466 U.S. at 687-88). “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.' Strickland, 466 U.S. at 691. “When applying Strickland to the facts of a particular case, ‘there is no reason for a court . . . to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.'” McDaniel ...

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