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Gunn v. United States

United States District Court, C.D. Illinois, Peoria Division

June 21, 2018

TEQUILA J. GUNN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER & OPINION

          JOE BILLY McDADE UNITED STATES SENIOR DISTRICT JUDGE.

         Before the Court is a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody (Doc. 1) filed by Tequila J. Gunn. Ms. Gunn filed a memorandum of law in support of her motion and the Government has responded. Ms. Gunn has failed to file a reply brief in the time allotted by the Court. The Court sees no reason for further delay and rules on the motion forthwith. For the reasons stated below, the motion is denied.

         LEGAL STANDARDS

         Section 2255 of Title 28 of the United States Code provides that a sentence may be vacated, set aside, or corrected when such 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. “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). Section 2255 relief is limited to correcting errors of constitutional or jurisdictional magnitude or errors constituting fundamental defects that result in complete miscarriages of justice. E.g., Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994), overruled on other grounds by United States v. Ceballos, 26 F.3d 717 (7th Cir. 1994). “A § 2255 motion is not a substitute for a direct appeal.” Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003) (citing Doe v. United States, 51 F.3d 693, 698 (7th Cir. 1995)).

         BACKGROUND

         On January 9, 2017, Ms. Gunn entered into a plea agreement with the Government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A) and (C), agreeing that this Court should sentence her to thirty-six months imprisonment for one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841 and to a consecutive sentence of sixty months imprisonment for one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Thus, her total term of imprisonment contemplated by the plea agreement was ninety-six months (eight years). (Plea Agreement and Judgment, United States v. Gunn, No. 16-cr-10024 (C.D. Ill. 2017), Docs. 21 and 27). She was sentenced in accordance with the plea agreement on April 19, 2017. (Judgment, United States v. Gunn, No. 16-cr-10024 (C.D. Ill. 2017), Doc. 27).

         Relevant portions of Ms. Gunn's plea agreement follow:

The parties agree that, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the Court shall sentence the defendant to 36 months' (3 years') imprisonment on count one and to a consecutive sentence of 60 months' (5 years') imprisonment on count two for a total term of imprisonment of 96 months (8 years).
The defendant is pleading guilty to count one in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and count two of the indictment in violation of 18 U.S.C. § 924(c).
The defendant will plead guilty to count one and count two of the indictment because the defendant is in fact guilty of those charges. In pleading guilty to count one and count two, the defendant stipulates to and admits to the allegations set forth in count one and count two and to the following facts:
On March 11, 2016, detectives of the Bloomington Police Department obtained a state search warrant for GUNN's residence at 409 E. Market Street, Bloomington, Illinois. The search warrant was based two controlled purchases of crack cocaine (0.9 g and 1.8 g) from GUNN that had previously taken place in GUNN's bedroom. During execution of the warrant, agents seized a total of approximately 52 grams of crack cocaine and 15 grams of powder cocaine. Of the total amount seized, agents located a clear plastic bag containing 48.6 grams of crack inside a shoe next to the dresser in GUNN's bedroom. Fifteen (15) individually wrapped baggies containing 3.7 g of crack cocaine were located in a nightstand in the same room. One clear plastic bag containing 14.2 grams of powder cocaine was located inside a shoe next to the dresser in GUNN's bedroom as well as a separate clear plastic bag of powder cocaine weighing 0.5 g which was found inside a sandal in the same room.
A stolen Smith and Wesson .38 Special revolver was also located in GUNN's bedroom, inside of a hard shell gun case. The case was unlocked and situated next to the dresser within feet of the [sic] controlled substances. A box of Remington .38 Special ammunition with 41 live cartridges was found inside the hard shell case as well. The revolver was loaded and readily accessible.
The defendant stipulates and agrees that she possessed powder cocaine and crack cocaine, that she knew that she possessed powder and crack cocaine, and that she intended to distribute the powder cocaine and crack cocaine to at least one other person. The defendant further stipulates that she knowingly possessed a Smith & Wesson .38 Special revolver handgun and that the gun was possessed to further the possession and distribution of his narcotics by being available to protect her and the place where her drugs and money were kept from robbery.
The defendant understands that by pleading guilty she surrenders the following rights, among others:
a. The right to plead not guilty or persist in the plea of not guilty if already made. If the defendant persisted in a plea of not guilty to the charges the defendant would have the right to a public and speedy trial.
b. The right to a trial by jury. The defendant has an absolute right to a jury trial.
The defendant understands that by pleading guilty the defendant is waiving all the rights set forth in the prior paragraph. The defendant's attorney has explained to the defendant those rights and the consequences of the waiver of those rights.

(Doc. 21 et passim (emphasis added)).

         Ms. Gunn signed the plea agreement, as did her counsel, who by signing, also swore that he discussed the plea agreement fully with Ms. Gunn and was satisfied that she fully understood its contents and terms. (Doc. 21 at 14). At the change of plea hearing, the Court asked Ms. Gunn questions to ensure that she understood her rights, including the right to go to trial, and understood the charges to which she was pleading guilty, the statutory penalties and the guidelines range. (See Transcript of Proceedings, Doc. 5-1 et passim). The Court also inquired from Ms. Gunn whether she entered into the plea agreement with knowledge and on her own volition. Ms. Gunn's answers to the Court's questions left no one in doubt that she knew she had a right to a trial and that she was knowingly relinquishing that right. (See id.).

         DISCUSSION

         The Court has examined Ms. Gunn's motion (Doc. 1) and memorandum in support thereof (Doc. 3). In her motion, Ms. Gunn lists ineffective assistance of counsel as the ground for her claim and then she lists three so-called facts as the basis for her claim. (Doc. 1 at 4). First, she states her sentencing counsel gave her bad and fabricated advice as to why not to go to trial. Second, she claims counsel was ineffective for not requesting a two point minor role reduction in her guidelines range calculation or the safety valve. Third, she states her counsel was ineffective for not presenting the Supreme Court case of Dean v. United States, 137 S.Ct. 1170 (U.S. Apr. 3, 2017), in support of the Court giving her a lesser sentence for her drug trafficking crime.

         I. Ineffective Assistance For Failure To Explain Plea Agreement And For Failure To Effectuate Petitioner's Wish To Go To Trial.

         In her memorandum of law, Ms. Gunn expounds on the factual basis for her claims. She states her request for trial “was never presented to the Court by Attorney Carter.” (Doc. 3 at 4). She continues:

Attorney Carter kept stating “It is bigger and higher than the U.S. Attorney, and you can't, it is not allowed.” He stated the same when Petitioner requested the he ask for the Safety Valve consideration and again when she ask for the Minor Role. “This is higher than the U.S. Attorney and I can't ask for any of that.”

(Doc. 3 at 4). Ms. Gunn attached a declaration to her memorandum in which she avers that she

wanted [sentencing counsel] to negotiate the Plea Agreement, and object to several things, including the fact that I am a FOID card carrier for fifteen years, the gun was under my bed, not as they said in the indictment. It was there for my protection. My house had been broken into for the first time ever and they stole my jewelry, collectables, and some money. That[sic] is why I had it under my bed. Peter Morris, who I had known for some 25 years, also the informant in this case, was who had given me the gun. He is the only one I ever sold the drugs to so why would I ever need his weapon against him? Mr. Carter's response was always that was that “he could not” because, “It is over the Government's head'. He stated that “He was not allowed, ” to present it.
The only thing consistent was his persistence that I accept the eight year plea. He refused to negotiate my plea when I asked or explain any of theagreement so that I could understand it. When I asked about taking my case to trial, he said that “They would not allow that.” Now I know it was all bad advice in ...

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