United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Judge
Ali Clay (“Petitioner”) is serving a 168-month
sentence following a conviction for distribution of cocaine.
Currently before the Court are Petitioner's pro
se motion  to vacate, set aside, or correct his
conviction and sentence pursuant to 28 U.S.C. § 2255
(“habeas petition”) and motion  for leave to
amend pursuant to Rule 15(a) of the Federal Rules of Criminal
Procedure. For the reasons stated below, the Court grants
Petitioner's motion for leave to amend  and grants in
part and denies in part Petitioner's motion to vacate,
set aside, or correct his conviction and sentence .
Specifically, based on a clear error in regard to the
computation of Petitioner's criminal history that went
unnoticed by trial counsel, appellate counsel, the
Government, and the Court and that prejudiced Petitioner
going forward, both at his original sentencing and his
re-sentencing following a retroactive amendment to the
Guidelines, the Court reduces Petitioner's sentence from
168 months to 151 months in the custody of the Bureau of
April and May 2009 and June 2011, Petitioner sold crack
cocaine to a government informant known as “Poochie
Man.” Petitioner was arrested following the June 2011
transaction. At the time of his arrest, Petitioner confessed
to Special Agent (“SA”) Christopher Labno of
conducting extensive drug sales since April 2009. According
to SA Labno, Petitioner confessed that he had been selling
Poochie Man crack for several years and had done
approximately ten to twelve transactions with him since 2009,
with two transactions for 63 grams and the rest of either an
ounce (28.35 grams) or an “8-ball” (3.5 grams).
R. 107 at 25-28. According to Agent Labno, Petitioner also
confessed that from 2009 until the time of his arrest, he
“overall on average” sold between 63 and 125
grams of crack every 3 to 4 days, for a total drug volume of
approximate 11 kilograms (11, 000 grams). Id. at
was charged with three counts of distributing crack cocaine,
in violation of 21 U.S.C. § 841(a)(1). See R. 12.
Petitioner pled not guilty. Petitioner also moved to suppress
the incriminating statements he had made following his
arrest, on the ground that he was so intoxicated that he
could not validly have waived his Fifth Amendment rights to
remain silent and to have counsel present during questioning.
See R. 36. At the suppression hearing, Petitioner testified
that he had exaggerated the amount of drugs he sold in order
to make himself more valuable to the Government as a
potential confidential informant. See R. 107 at 154. The
Court “credited the agents' testimony that
[Petitioner] had appeared calm and lucid, said nothing about
being intoxicated, talked at length about multiple drug
deals, and even tried to negotiate with the agents.”
United States v. Clay, 562 Fed.Appx. 531, 532-33
(7th Cir. 2014). The Court therefore concluded that
Petitioner's plea was knowing and voluntary and denied
his motion to suppress.
the denial of his motion to suppress, Petitioner entered a
change of plea. See R. 81. Petitioner signed a plea
declaration stating that he distributed between 112 and 196
grams of cocaine base between April 11, 2009 and June 9, 2009
and, after a hiatus, distributed between 28 and 112 grams of
cocaine base. R. 82. at 7. The plea declaration contained an
anticipated advisory Sentencing Guidelines range of 70-87
months' imprisonment, subject to a ten-year mandatory
minimum of 120 months, which was based on an anticipated
criminal history category of III and an anticipated
three-level reduction in offense level for acceptance of
responsibility. In the plea declaration, Petitioner
acknowledged that he understood the advisory Guidelines
calculations were “preliminary in nature and . . .
non-binding predictions”; that “the Court
ultimately determines the facts and law relevant to
sentencing”; that “the validity of [his]
[d]eclaration [wa]s not contingent upon . . . the Court's
concurrence with the . . . calculations”; and that he
would “not have a right to withdraw his plea on the
basis of the Court's rejection of the
calculations.” R. 82 at 9.
February 28, 2013 change of plea hearing, Petitioner
acknowledged that he had read the plea declaration and
reviewed it with his attorney before signing. Petitioner also
stated that he understood that he faced a sentence of between
10 years (the mandatory minimum) and life. The Government
informed Petitioner and the Court that, at sentencing, it
would seek a 2-level enhancement for obstruction of justice
and was reserving its right to object to a three-point
reduction for acceptance of responsibility. R. 108 at 15-16.
The Government took the position that it was a “close
call whether [Petitioner] should be given acceptance if he
continues to dispute his own statements to the agents when he
has admitted the vast majority of that statement is in fact
true, ” and “the only statements he is not
admitting in the statement are the ones exposing him to such
a massive sentenc[e] under the Guidelines.”
Id. at 15. Petitioner's attorney took the
position that Petitioner should receive the three-point
reduction for acceptance of responsibility. Id. at
accepting Petitioner's plea, the Court asked Petitioner
if he understood that, “at sentencing, I will make a
final determination as to what Guideline range should apply
to this case.” R 108 at 18. Petitioner responded,
“Yes.” Id. The Court also asked
Petitioner, “if it turns out that the sentence is more
severe than you were hoping for or than you expected, do you
understand that you still would be bound by your plea and
would have no right to withdraw it?” Id.
Petitioner responded, “Yes.” Id.
Further, the Court asked Petitioner, “do you understand
that the final decision as to what your sentence will be
rests with the court?” Id. at 19. Petitioner
responded, “Yes.” Id. Petitioner then
entered his guilty plea. Id. at 24-25.
Court sentenced Petitioner on July 15, 2013. See R. 92. At
the sentencing hearing, the Government took the position that
Petitioner was responsible for 11 kilograms of cocaine.
Petitioner took the position that he should be sentenced
based on less than 200 grams. The Court found that Petitioner
was responsible for between 280 and 840 grams of crack
cocaine. R. 109 at 28, 43-45.
Court also found that Petitioner had obstructed justice by
testifying falsely at the suppression hearing, and gave him a
two-point sentencing enhancement. The Court explained,
“that's not mere accident and it's not mere
misremembering or not remembering, but there was a lack of
credibility that. . . suggests a contrived aspect to it
rather than accidental or memory loss, and that's really
where the court of appeals draws the line on obstruction of
justice . . . the story he told just doesn't hold
together in too many ways with too much detail for it not to
have been an attempt to obstruct justice.” R. 109 at
46-47. The Court also declined to give Petitioner the
three-point acceptance of responsibility reduction that he
sought. According to the Court, “with the obstruction
[enhancement], as a Guideline matter it would be very
difficult” to also obtain a reduction for acceptance of
responsibility, but noted that “there are circumstances
in which you could get both an obstruction and an
acceptance.” R. 109 at 69. “[I]n any event,
” the Court concluded, Petitioner's acceptance was
not as “robust as you need to” get the
three-point reduction, because Petitioner “accepted
some things and not others[.]” Id. at 70.
Nonetheless, the Court gave Petitioner partial credit for
acceptance of responsibility by taking it into consideration
under Section 3553(a). Id. at 49; see also 18
Court determined that Petitioner's final offense level
was 34, his criminal history category was IV, and that the
Guidelines range was 210 to 262 months imprisonment. R. 109
at 42. As to the criminal history category, the Court
accepted Probation's calculation, which included 3
criminal history points for Petitioner's 2003 AUUW
conviction. See R. 84 at 16 (assigning 3 points to
conviction). In total, Petitioner was assigned 8 criminal
history points, for a criminal history category of IV. See R.
109, at 42, 68 (transcript of sentencing hearing); see also
R. 84 at 19 (presentence investigation report showing total
of 8 points for criminal history category of IV).
Petitioner's attorney did not object to these
calculations. The Court gave Petitioner a below-Guidelines
sentence of 192 months, “in part” because of
Petitioner's partial acceptance of responsibility. R. 109
filed a notice of appeal to the Seventh Circuit. See
United States v. Clay, 562 Fed.Appx. 531 (7th Cir.
2014). His appellate counsel filed an Anders brief
asserting that the appeal was frivolous and seeking to
withdraw as counsel. Id. at 532. Appellate counsel
also informed the Seventh Circuit that Petitioner “does
not wish to challenge his guilty plea.” Id.
opposed his counsel's motion to withdraw. Id.
The Seventh Circuit granted appellate counsel's motion to
withdraw and dismissed Petitioner's appeal.
Court subsequently reduced Petitioner's sentence from 192
months to 168 months, based on an amendment to the Sentencing
Guidelines which lowered the base offense levels applicable
to narcotics offenses. See R. 124, 126.
now seeks to vacate, set aside, or correct his conviction and
sentence pursuant to 28 U.S.C. § 2255. Petitioner's
motion raises five issues, which are discussed in turn below.
Petitioner also seeks leave to amend to add a sixth issue,
which is discussed in conjunction with the first, related,
seeks habeas relief under Section 2255. A Section
2255 motion to vacate to set aside or correct a sentence will
be granted only if the petitioner establishes 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. The Seventh Circuit has stressed that
“relief under § 2255 is an extraordinary remedy
because it asks the district court essentially to reopen the
criminal process to a person who already has had an
opportunity for full process.” Almonacid v. United
States, 476 F.3d 518, 521 (7th Cir. 2007). A Section
2255 motion is not a substitute for a direct criminal appeal.
See Varela v. United States, 481 F.3d 932, 935 (7th
Cir. 2007). If a petitioner does not raise a claim on direct
appeal, that claim is barred from the Court's collateral
review unless the petitioner can demonstrate (1) cause for
the procedural default and actual prejudice from the failure
to appeal, Fuller v. United States, 398 F.3d 644,
648 (7th Cir. 2005); (2) that enforcing the procedural
default would lead to a “miscarriage of justice,
” Anderson v. Benik, 471 F.3d 811, 815 (7th
Cir. 2006); or (3) that there has been a ...