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United States v. Smith

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

November 28, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
JOHN SMITH, Defendant-Petitioner.

          MEMORANDUM OPINION AND ORDER

          Honorable Edmond E. Chang United States District Judge

         John 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.[1] R. 1, Pet.'s Br.[2] 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 issue.

         I. Background

         In 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.

         When 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.

         In the § 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.[3]

         In June 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 detention.

         After 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. 772.[4] 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.

         Again, 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.

         II. Legal Standard

         A. 28 U.S.C. § 2255

         Under 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).

         Section 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 Strickland standard.

         B. Ineffective Assistance of Counsel

         The 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 694.

         III. Analysis

         A. Plea Negotiations

         First, 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).

         To 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).

         To 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).

         The 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).

         Here, 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 ...


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