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United States v. Pearson

United States District Court, N.D. Illinois, Eastern Division

July 11, 2017



          Hon. Virginia M. Kendall United States District Judge.

         Pursuant to 28 U.S.C. § 2255, Petitioner Kenneth Pearson filed this pro se Motion to Vacate, Set Aside, or Correct Sentence based on a claim of ineffective assistance of counsel. (Dkt. 1.) The Court sentenced Pearson below the guideline range. Nevertheless, Pearson now challenges his sentence more than one year after his conviction became final and attempts to circumvent his PLRA filing bar by presenting a meritless ineffective assistance of counsel claim. For the reasons set forth below, Pearson's Motion is [1] denied.


         Pearson led a counterfeit check scheme that compromised over 100 bank customers' accounts and cost financial institutions over $1, 000, 000. United States v. Pearson, 12 CR 904-1 Cr. Dkt. 525 at 1.[1] Between 2010 and 2012, Pearson and his associates stole bank customers' information and copies of checks they had written. (Id.) They then used this information to create counterfeit checks that were made out to “runners” who were recruited by Pearson and his associates. (Id. at 2.) The runners cashed the checks and divided the proceeds among the runners, Pearson, and Pearson's associates. (Id.)

         On December 20, 2012, a federal grand jury returned a thirty-three count indictment charging Pearson with bank fraud and aggravated identity theft. (Cr. Dkt. 14.) On September 29, 2014, Pearson pled guilty to participating in a scheme to defraud financial institutions in violation of 18 U.S.C. § 1344 (Count Three) and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) (Count Thirty-Three). (Cr. Dkt. 493.)

         The guideline sentencing range for Count Three was 97 to 120 months and Count Thirty-Three carried a mandatory minimum sentence of 24 months' imprisonment. (Cr. Dkt. 684.) On January 12, 2015, this Court sentenced Pearson to 80 months' imprisonment for Count Three (below the guideline range) and the mandatory consecutive 24 months for Count Thirty-Three and four years of supervised release. (Cr. Dkt. 540.)[2] Pearson did not appeal his conviction or sentence.

         On March 22, 2017, Pearson filed this Motion seeking relief from what he alleges is a sentence in excess of the maximum authorized by law. He reaches this conclusion on the erroneous basis that “the only way supervised release can be imposed as part of the sentence of imprisonment…is if it comes out of the maximum imprisonment authorized.” (Dkt. 1 at 4.) He claims that his lawyer provided inadequate counsel by failing to make this argument at sentencing. (Id. at 1.) He further claims that despite his filing this motion long after the one year statute of limitations had expired for this motion, the limitations period did not begin tolling until he learned of his counsel's error through due diligence. Accordingly, he argues that his Motion is not time-barred under § 2255(f)(4). (Id. at 1-2.) For the following reasons, Pearson's claim is time-barred and, even if it were timely, his ineffective assistance of counsel claim is meritless.


         In relevant part, 28 U.S. § 2255(a) provides: “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence imposed… was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” The statute provides relief to a defendant only in “extraordinary situations, such as an error of constitutional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” Black v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013). Relief under this statute is rare because it requires the Court to “reopen the criminal process to a person who has already had full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Likewise, §2255 provides relief for Sixth Amendment claims of ineffective assistance of counsel only when the prisoner can demonstrate that counsel's performance was so deficient as to be “objectively unreasonable under prevailing professional norms” and that he suffered prejudice as a result of counsel's deficient performance. United States v. Parker, 2016 WL 7034131 (7th Cir. 2016), quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Accordingly, if it “plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.” Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts.


         I. Statute of Limitations and § 2255(f)(4)

         Pursuant to § 2255(f), § 2255 motions are subject to a one year period of limitations, which begins to run on the latest of the following:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from ...

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