United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL, United States District Judge
before the Court is Plaintiff Jonathan Malone's Motion to
Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C.
§ 2255. (Doc. 1). For the reasons set forth below, the
motion is denied.
And Procedural Background
January 21, 2016, a federal grand jury indicted Malone on
three charges: (1) Interference with Commerce by Robbery, in
violation of 18 U.S.C. § 1951(a) [Count 1]; (2)
Brandishing a Firearm During a Crime of Violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii) [Count 2]; and
(3) Unlawful Possession of a Firearm by a Previously
Convicted Felon, in violation of 18 U.S.C. § 922(g)(1)
[Count 3]. (Doc. 6, p. 4; See also 16-cr-30015, Doc.
6). On March 14, 2016, Malone pleaded guilty to all three
charges. (Doc. 6, p. 4).
12, 2016, the undersigned sentenced Malone to the low-end of
the advisory sentencing guidelines on Counts 1 and 3 (24
months concurrently), and then added the statutory minimum
for Count 2 (84 months-seven years) to run consecutively to
Counts 1 and 2, bringing Malone's sentence to 108
months. (Doc. 6, pp. 4-5; See also
16-cr-30015, Doc. 32). Malone filed the pending Motion to
Vacate, Set Aside or Correct sentence pursuant to 28 U.S.C.
§ 2255 on March 20, 2017 (Doc. 1).
28 U.S.C. § 2255, a court must vacate, set aside, or
correct the sentence of a prisoner in custody if it finds
sentence was imposed in violation of the Constitution or laws
of the United States. 28 U.S.C. § 2255. “[R]elief
under § 2255 is an extraordinary remedy because it asks
the district court essentially to reopen the criminal process
to a person who has already had an opportunity for full
process.” Almonacid v. United States, 476 F.3d
518, 521 (7th Cir. 2007) (citing Kafo v. United
States, 467 F.3d 1063, 1068 (7th Cir. 2006)). Thus,
relief under 28 U.S.C. § 2255 is only available in
extraordinary situations. Blake v. United States,
723 F.3d 870, 878-79 (7th Cir. 2013).
a direct appeal, in which a defendant may complain of nearly
any error, § 2255 may be used only to correct errors
that are of constitutional magnitude or that inherently
resulted in a complete miscarriage of justice. 28 U.S.C.
§ 2255; Blake, 723 F.3d at 879. Such errors can
include ineffective-assistance-of-counsel claims. Massaro
v. United States, 538 U.S. 500, 504 (2003). In fact,
such claims are often best addressed through a § 2255
motion because “in many cases [the trial record] will
not disclose the facts necessary to decide either prong of
the Strickland analysis.” Cooper v. United
States, 378 F.3d 638, 641 (7th Cir. 2004) (quoting
Massaro, 538 U.S. at 505).
heavy burden of showing ineffective assistance of counsel
rests squarely on the shoulders of the one seeking relief.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
The court's review of an attorney's conduct is
“highly deferential” and assumes that
counsel's conduct fell within the “wide range of
reasonable professional assistance.” United States
v. Holman, 314 F.3d 837, 840 (7th Cir. 2002)
(quoting Strickland, 466 U.S. at 689).
evaluating a § 2255 motion claiming ineffective
assistance of counsel, a court will apply the two-prong
Strickland test. McDowell v. Kingston, 497
F.3d 757, 761 (7th Cir. 2007). The first prong requires the
petitioner to demonstrate counsel's performance was
deficient. Strickland, 466 U.S. at 687. To be
considered deficient, counsel's errors must have been so
serious they were in effect not acting as the “counsel
guaranteed by the Sixth Amendment.” Id. The
second prong requires the petitioner to show counsel's
deficient performance prejudiced the defense. Id.
The question is whether but for counsel's unprofessional
errors, the result would have been different. Id. at
694. Importantly, a court does not need to analyze both
prongs of the test, as a petitioner's failure to satisfy
either prong is sufficient to defeat the claim. Ebbole v.
United States, 8 F.3d 530, 533 (7th Cir. 1993)
(citing United States v. Slaughter, 900 F.2d 1119,
1124 (7th Cir. 1990)).
argues that counsel's performance was deficient for
several reasons. The first claim alleges his counsel should
have “known that the government was precluded from
indicting or sentencing him for the Hobbs Act Offense.”
(Doc. 1, p. 9). This argument appears to be based on a
misunderstanding of the Supreme Court decision in Johnson
v. United States. Malone reads the holding in that case
to stand for the proposition that the Hobbs Act itself is
unconstitutionally vague and therefore he could not be
charged under that statute. (Doc. 1, p. 9). Had Malone's
interpretation of Johnson been correct, then his
counsel's advice recommending he enter a guilty plea to
that charge would have been deficient. Unfortunately for
Malone, he has misunderstood the Supreme Court's holding.
In Johnson v. United States the court held that
imposition of an enhanced sentence under the
residual clause of the ACCA violates due process. Johnson
v. United States, 135 S.Ct. 2551, 2557 (2015) (emphasis
added). Nothing in the language of the opinion suggests the
Hobbs Act itself is unconstitutionally vague. Thus, this
also appears to argue his attorney should have known that
sentencing him under both 18 U.S.C. § 1951(b)(3)
(interference with commerce by robbery) and 18 U.S.C. §
924(c)(1)(A)(ii) (brandishing a firearm during a crime of
violence) violated his Fifth Amendment guarantee against
double jeopardy. (Doc. 1, p. 22). Presumably, Malone is
arguing the brandishing charge requires proof of the same
elements as the robbery charge, and therefore would be barred
under the Blockburger test.
Supreme Court has held, however, that the double jeopardy
clause is not offended where Congress specifically authorizes
cumulative punishments. Missouri v. Hunter, 459 U.S.
359, 368 (1983); United States v. Seawood, 172 F.3d
986, 989 (7th Cir. 1999). In the multiple punishments
context, the Double Jeopardy Clause operates as a limit on
the judiciary, not the legislature. Jones v. Thomas,491 U.S. 376, 381 (1989). Thus, the judiciary cannot impose a
punishment that exceeds that authorized by the legislature,
but the legislature is within its rights to authorize
multiple punishments for the same activity. Id. So
long as the legislature has made sufficiently clear that