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United States v. Hunter

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

January 22, 2018

UNITED STATES OF AMERICA, Respondent,
v.
CHRISTOPHER HUNTER, Movant.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE.

         In December 2011, Christopher Hunter pled guilty to a charge of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. § 846. In May 2012, the Court sentenced Hunter to a prison term of twenty years. The Seventh Circuit rejected his subsequent appeal based on the conclusion that he had entered an unconditional guilty plea and thus had not properly preserved the right to appeal. United States v. Adams, 746 F.3d 734, 739 (7th Cir. 2014). Following a successful motion under 28 U.S.C. § 2255 to have his original guilty plea withdrawn and the judgment vacated, Hunter entered a second guilty plea pursuant to a plea agreement in October 2016. In January 2017, the Court sentenced him to sixteen years in prison; Hunter appealed neither the conviction nor the sentence. He has now moved to vacate his sentence under section 2255, arguing primarily that his career offender designation was inappropriate and that his attorney's failure to object to his career offender status and to appeal on that basis constituted ineffective assistance.

         Background

         The Court assumes familiarity with the facts of Hunter's criminal case. For purposes of the present motion, it suffices to say that Hunter was a member of the New Breeds, a street gang that operated a large heroin distribution ring on the west side of Chicago, and that he participated in the illegal operation by diluting the heroin prior to its distribution to street-level sellers. In November 2010, following an investigation by the Drug Enforcement Administration and the Chicago Police Department, a federal grand jury returned a twenty-two count indictment charging Hunter and thirteen others with a number of drug-related offenses.

         In December 2011, three months after the Court denied his motion to suppress the fruits of certain court-authorized wiretaps conducted during the course of the investigation, Hunter pled guilty to count one of the indictment, a charge of conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846. Although Hunter's plea declaration repeatedly stated that he was reserving the right to appeal the denial of his motion to suppress, his attorney did not obtain approval of this reservation from the government or the Court. The Court sentenced Hunter to twenty years in prison, which was the mandatory minimum term in light of the applicable sentence enhancement under 21 U.S.C. §§ 841(b)(1)(A) and 851. He filed an appeal challenging the denial of the motion to suppress, but the Seventh Circuit dismissed the appeal in February 2014 based on its conclusion that the issue had not been properly preserved. See Adams, 746 F.3d at 739 (Federal Rule of Criminal Procedure 11(a)(2) requires both the government and the district court to agree to a conditional plea in order to preserve the right to appeal a pretrial motion).

         In January 2015, Hunter filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In it, he argued that his trial counsel rendered ineffective assistance of counsel in violation of the Sixth Amendment by: (1) failing to preserve his right to appeal the denial of his motion to suppress, (2) failing to challenge the enhancement of his sentence under the federal Sentencing Guidelines' career offender provision and 21 U.S.C. § 851, [1] and (3) failing to inform the government that he wished to cooperate. The Court rejected Hunter's second and third claims but granted an evidentiary hearing on the first and appointed counsel to represent him. In March 2016, after the Court found in Hunter's favor on claim one, his guilty plea was withdrawn and the judgment was vacated.

         Represented by the same counsel appointed for the 2255 evidentiary hearing, Hunter again pled guilty to count one of the indictment in October 2016, this time pursuant to a written plea agreement. The government agreed to move to dismiss the notice of prior conviction filed under section 851, thereby reducing Hunter's mandatory minimum sentence from twenty years to ten years. The plea agreement also listed a number of points to which the parties stated they agreed "[f]or purposes of calculating the Sentencing Guidelines." Plea Agreement, No. 10 CR 673-6, dkt. no. 979 at 7. Among these points of agreement was the admission that Hunter "is a career offender, pursuant to Guidelines §§ 4B1.1(a) and 4B1.2" as a result of convictions for "delivery of a controlled substance" in 1993 and 1997. Id. at 9, 11-12. At the change of plea hearing, upon questioning by the Court, Hunter confirmed that he went over the entire plea agreement carefully with his attorney before signing it, he believed he understood everything that was in the agreement, and he was satisfied with his attorney's work on the case thus far. The Court specifically noted that on pages seven through twelve of the plea agreement, Hunter "made some agreements with the government about how [the] sentencing guidelines scores should be calculated." Oct. 21, 2016 Plea Hr'g Tr. 12:22-12:25. When asked whether he had gone over that information carefully with his attorney, Hunter responded that he had.

         The Court held a resentencing hearing in January 2017. The Court began by noting that the government's 2016 supplement to its original presentence report proposed a Guideline calculation of offense level 34 and criminal history category VI. Neither Hunter nor his attorney objected to the proposed calculation. After determining that the advisory range under the Guidelines was 262 months to 327 months, the Court imposed a significantly below-Guidelines sentence of 192 months (sixteen years) in prison. Hunter did not appeal.

         In April 2017, Hunter filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255(a). In October 2017, after he received the government's response to his motion and filed a reply, Hunter filed a "Motion to Supplement According to Civil Procedure Rule 15(a), (c)(2)(B) in Relation Back to Petitioner's Title 28 U.S.C. Section [ ]2255 Motion." Both sides fully briefed this motion as well.

         Discussion

         As an initial matter, pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court grants Hunter's October 2017 "Motion to Supplement, " which it construes as a motion for leave to amend. Because this motion was filed well within one year of when the judgment of conviction became final, there is no need to address whether the amendment relates back to the filing date of Hunter's original 2255 motion. See 28 U.S.C. § 2255(f)(1).

         Under section 2255, a federal prisoner may move to vacate, set aside, or correct a sentence that was imposed in violation of the Constitution or laws of the United States or that is otherwise subject to collateral attack. Id. § 2255(a). Hunter alleges two grounds for relief. First, Hunter contends that he received ineffective assistance of counsel when his attorney failed to object to the application of the Sentencing Guidelines career offender enhancement at resentencing on the ground that his prior state convictions were not proper predicates for the enhancement. He also argues that, as a result of the allegedly erroneous application of the career offender enhancement, he is serving an unconstitutional sentence in violation of his Fifth Amendment Due Process rights and the Sixth Amendment. In his reply brief, Hunter attempts to raise two additional claims. First, in replying to the government's contention that his challenge to the career offender enhancement is procedurally defaulted because he failed to pursue the claim on direct appeal, Hunter alleges for the first time that his attorney refused his request to appeal and that this constituted ineffective assistance of counsel. Second, he argues in his reply that his incarceration based on this allegedly unconstitutional sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. Hunter repeats these claims both in his October 2017 motion to supplement and his December 2017 reply to the government's response to that motion.

         A. Sixth Amendment ineffective assistance claims

         To prevail on an ineffective assistance claim, a defendant must establish both that his attorney's performance "fell below an objective standard of reasonableness" and that he suffered prejudice as a result. Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009) (quoting Strickland v. Washington,466 U.S. 668, 688 (1984)). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 458 (citation omitted). A defendant will be found to have suffered prejudice only if he can show that "there is a reasonable probability that, ...


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