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Malonee v. United States

United States District Court, S.D. Illinois

November 6, 2017



          NANCY J. ROSENSTENGEL, United States District Judge

         Pending 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.

         Factual And Procedural Background

         On 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).

         On July 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.[1] (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).

         Legal Standard

         Under 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).

         Unlike 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).


         The 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).

         When 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)).

         Malone argues that counsel's performance was deficient for several reasons.[2] 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 argument fails.

         Malone 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.[3]

         The 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 multiple ...

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