United States District Court, C.D. Illinois, Urbana Division
JEFFREY L. DICKERSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
DARROW UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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).
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.
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.
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.”).
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 ...