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Clay v. United States

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

April 19, 2018

ALI CLAY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge

         Petitioner 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 [1] to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. § 2255 (“habeas petition”) and motion [14] 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 [14] and grants in part and denies in part Petitioner's motion to vacate, set aside, or correct his conviction and sentence [1]. 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 Prisons.

         I. Background[1]

         In 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 37-38.

         Petitioner 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.

         Following 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.

         At the 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 16.

         Before 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.

         The 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.

         The 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 U.S.C.§ 3553(a).

         The 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 at 68.

         Petitioner 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.

         Petitioner opposed his counsel's motion to withdraw. Id. The Seventh Circuit granted appellate counsel's motion to withdraw and dismissed Petitioner's appeal.

         This 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.

         Petitioner 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, issue.

         II. Legal Standard

         Petitioner 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 ...


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