United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang United States District Judge
Smith, a federal inmate proceeding pro se, has filed
a motion to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255. R. 1, Pet.'s Br. A jury found
Smith guilty on four counts of heroin distribution, in
violation of 21 U.S.C. § 841(a)(1). Cr. R. 70, 07/17/14
Minute Entry. In April 2015, Smith was sentenced to 216
months of imprisonment. Cr. R. 125, Sentencing J. at 2. His
conviction was affirmed by the Seventh Circuit, and this
motion followed. United States v. Smith, 818 F.3d
299 (7th Cir. 2016). Now, Smith challenges his sentence,
claiming that he received ineffective assistance of counsel
and that the Court inaccurately applied the career offender
enhancement under the Sentencing Guidelines. Pet.'s Br.;
R. 17, Pet. Mot. Am. For the following reasons, Smith's
motion is denied and no certificate of appealability will
October 2013, Smith was charged by complaint with knowingly
and intentionally distributing heroin. Cr. R. 1, Compl. at 1.
In sum, a confidential source agreed to buy heroin from Smith
for the FBI's investigation, leading to controlled
purchases of heroin in October and November 2010. Compl.
¶ 6. Law enforcement surveilled each transaction and
recorded the meetings and interactions of Smith with the
confidential source. Id.
preparing for trial, in December 2013, the United States
Attorney's Office filed an “Information Stating
Previous Drug Conviction to be Relied Upon in Seeking
Increased Punishment, ” 21 U.S.C. § 851, providing
notice to Smith and his counsel that the government would
seek an enhanced sentence if Smith was convicted on the
fourth count in the indictment. Cr. R. 45, Information. That
charge was for intentionally distributing more than 100 grams
of heroin. Cr. R. 16, Indictment at 4; see also 21
U.S.C. § 841(a)(1). The government alleged that in a
November 2010 meeting between the confidential source and
Smith, Smith sold the confidential source 109 grams of
heroin. Compl. ¶ 33-45.
§ 851 Information, the government identified several
previous drug convictions that would qualify Smith for the
enhanced penalty. Specifically, Smith was convicted of:
manufacture or delivery of a controlled substance in June
1998 in Cook County; possession of a controlled substance in
September 2004 in Cook County; trafficking in drugs in
October 2006 in Cuyahoga County, Ohio; and possession of a
controlled substance in November 2007 in Cook County.
Information at 1-2.
2014, Smith's counsel and the government attended a
pretrial conference where this Court ruled on motions in
limine. Cr. R. 51, 06/23/14 Order Mot. Lim. The
government had previously filed consolidated motions in
limine on the admissibility of the video and audio
recordings of each sale. Cr. R. 43, Gov.'s Mot. Lim. This
Court granted the motion to admit, as there was proper
foundation for the video and audio recordings even without a
participating witness's testimony, and left open the
opportunity for Smith's counsel to make specific hearsay
objections. 06/23/14 Order on Mot. Lim. at 1-2. At trial, the
government used the recordings in its case in chief, as well
as recordings of Smith's phone calls during his pretrial
trial, during jury deliberations, the jury sent notes to the
Court. In one, a juror expressed concern about another
juror's overbearing conduct. Cr. R. 104, Trial Tr.
The Court consulted with the parties, eventually directing
the jury to re-read the Silvern instruction, and
deliberations continued. Id. at 776. In another, a
juror expressed reservations about coming to a decision. Cr.
R. 105, Trial Tr. 781.
the Court consulted with both parties, and with the agreement
of the defense, instructed the jurors to continue
deliberations. Id. at 787. The jury ultimately
convicted Smith on all counts. Cr. R. 71, Jury Verdict. The
Court sentenced Smith to 216 months in prison. Sentencing J.
at 2. The Seventh Circuit affirmed his conviction in March
2016, United States v. Smith, 818 F.3d 299 (7th Cir.
2016), after which Smith timely filed this motion.
28 U.S.C. § 2255
28 U.S.C. § 2255, a prisoner in custody pursuant to a
federal sentence may move to vacate his sentence “upon
the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack ....” 28
U.S.C. § 2255. In other words, to obtain relief under
§ 2255, Smith must show that the error asserted is
“jurisdictional, constitutional, or is a fundamental
defect which inherently results in a complete miscarriage of
justice.” Barnickel v. United States, 113 F.3d
704, 705 (7th Cir. 1997).
2255, however, “is not a substitute for a direct
appeal.” Id. at 706; see also Qualls v.
United States, 774 F.2d 850, 851 (7th Cir. 1985) (citing
United States v. Addonizio, 442 U.S. 178, 184
(1979)). Consequently, “[i]f any issue could have been
raised on direct appeal, the failure to take such appeal
precludes review pursuant to a section 2255 motion unless the
petitioner can show ‘cause' for the procedural
default and 'actual prejudice' resulting from the
errors of which the petitioner complains.”
Qualls, 774 F.2d at 851 (quoting United States
v. Frady, 456 U.S. 152, 167 (1982)); see also
Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir.
1988). There is an exception, however, for
ineffective-assistance claims, which are not subject to the
“cause and prejudice” standard. See Massaro
v. United States, 538 U.S. 500, 503 (2003)
(“[T]here is no procedural default for failure to raise
an ineffective-assistance claim on direct appeal.”).
That is because bringing ineffective assistance claims on
direct appeal may create a risk that defendants feel
compelled to raise the issue “before there has been an
opportunity fully to develop” the factual claims.
Id. at 504. Here, Smith's claims are largely-if
not completely-based on allegations that his counsel was
ineffective, so the Court proceeds under the
Ineffective Assistance of Counsel
Sixth Amendment guarantees criminal defendants the right to
effective assistance of counsel. To win on his
ineffective-assistance-of-counsel claim, Smith must meet the
familiar two-element standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Under
Strickland, Smith must show both that his trial
counsel's performance was deficient and that prejudice
resulted. Id. at 687. On the performance element,
the question is whether “counsel's representation
fell below an objective standard of reasonableness.”
Id. at 688. Judicial review of trial counsel's
performance “must be highly deferential” and
“every effort [must] be made to eliminate the
distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time.” Id. at 689. The Court must presume that
“the challenged action might be considered sound trial
strategy.” Id. (internal quotation marks and
citation omitted). On the prejudice element, Smith must show
that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
Smith contends that he received ineffective assistance of
counsel from his lawyer, Stuart Goldberg, in the plea
bargaining process. Pet.'s Br. at 5. Defendants have a
right to effective assistance of counsel not only for the
ultimate criminal trial itself, but also for certain steps
leading up to trial. Missouri v. Frye, 566 U.S. 134,
140 (2012). The Supreme Court recognizes that the right
extends to plea negotiations, because “the negotiation
of a plea bargain is a critical phase of litigation for
purposes of the Sixth Amendment right to effective assistance
of counsel.” Padilla v. Kentucky, 559 U.S.
356, 373 (2010); Frye, 566 U.S. at 141; Hill v.
Lockhart, 474 U.S. 52, 57 (1985).
succeed on a claim of ineffective assistance in the plea
bargaining process, Smith must show that his attorney's
performance at the plea stage was deficient and that Smith
was prejudiced by those deficiencies. Strickland,
466 U.S. at 687. Reasonably competent counsel in the plea
bargaining phase will “attempt to learn all of the
facts of the case, make an estimate of a likely sentence, and
communicate the results of that analysis” before either
allowing a client to plead guilty or opt for trial. See
Moore v. Bryant, 348 F.3d 238, 241 (7th Cir. 2003). And
although an attorney's analysis of the circumstances need
not provide a “precisely accurate prediction” of
the respective consequences of going to trial versus pleading
guilty, counsel's scrutiny “must be undertaken in
good faith.” United States v. Barnes, 83 F.3d
934, 939 (7th Cir. 1996).
satisfy the prejudice element, a defendant must show a
“reasonable probability” that “the outcome
of the plea process would have been different with competent
advice.” Gaylord v. United States, 829 F.3d
500, 506 (7th Cir. 2016) (quoting Lafler v. Cooper,
566 U.S. 156, 163 (2012)). It is true that an attorney who
fails to make a “meaningful attempt” to inform
his or her client of an existing offer, or advises the client
to reject a “highly favorable plea offer” by
unreasonably asserting that the defendant would not be
convicted at trial, has fallen below the Sixth Amendment
standard. Delatorre v. United States, 847 F.3d 837,
845 (7th Cir. 2017); see also Frye, 566 U.S. at 144;
Lafler v. Cooper, 566 U.S. 156, 163 (2012).
problem for Smith is that those principles of plea bargaining
do not help him because he was not actually offered
a formal plea agreement. Delatorre, 847 F.3d at 845.
This is similar to what happened in Delatorre, where
a defendant argued that his counsel performed deficiently by
failing to secure a plea deal with a maximum sentence of
twenty-five to thirty years. Id. at 845-46. The
government had suggested it would enter into a plea agreement
if the defendant cooperated with law enforcement.
Id. at 846. Under the circumstances-Delatorre had
already confessed his involvement in three murders and made
incriminating statements to an informant-his counsel believed
that the government would only be willing to negotiate if
Delatorre was one of the first gang members to cooperate.
Id. Not surprisingly, Delatorre's lawyer advised
him to “cooperate fully with the government.”
Id. But Delatorre refused to cooperate. Id.
The Seventh Circuit held that defense counsel could not be
faulted for his client's refusal to cooperate nor for the
“government's decision not to reward an
uncooperative defendant with a plea agreement.”
Id. at 846. Under those circumstances,
Delatorre's attorney performed reasonably, especially in
light of the principle that “[t]he government is not
required to offer any defendant such an agreement.”
Id.; see also United States v. Hall, 212
F.3d 1016, 1022 (7th Cir. 2000).
as in Delatorre, there was only so much that
Goldberg could have done for Smith in obtaining a favorable
plea. “[T]he successful negotiation of a plea agreement
involves factors beyond the control of counsel, including the
cooperation of his client … as well as the cooperation
of the prosecutor, who has no obligation to offer such an
agreement.” Delatorre, 847 F.3d at 846
(quoting Hall, 212 F.3d at 1022). Smith himself
admits that he still does “not know if a plea deal was
ever offered by the government.” Pet.'s Br. at 7.
Indeed, it appears that Goldberg did approach the
government to engage in plea discussions, particularly asking
that the government offer a plea without the enhanced
sentence triggered by the prior drug convictions under 21
U.S.C. § 851(a). Gov.'s Resp. Br., Exh. 1 ¶ 3.
In light of the substantial evidence against Smith, this was
a reasonable attempt on Goldberg's part to get as
favorable of a result as possible for his client. But after
the prosecutors consulted with their supervisors, the
government advised Goldberg that it would not be
withdrawing the § 851 enhancement. Gov.'s Resp. Br.,
Exh. 1 ¶¶ 4-5. In light of Smith's criminal
history (which included two drug trafficking ...