United States District Court, S.D. Illinois
RODNEY G. HEBBELER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE.
matter comes before the Court on petitioner Rodney G.
Hebbeler's motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) and his
amendment to that motion, which the Court construes as a
motion for leave to amend (Doc. 4). On July 12, 2016, the
petitioner pled guilty to six counts of possession with
intent to distribute and distribution of methamphetamine in
violation of 21 U.S.C. § 841(a)(1), each occurring on a
separate date within the period of January 30, 2015, to April
7, 2015. On November 20, 2016, the Court sentenced the
petitioner to serve 87 months in prison on each count, all to
run concurrently. The petitioner did not appeal his
§ 2255 Motion
Court will grant Hebbeler's motion to amend his §
2255 motion and considers the arguments in that amendment in
this analysis. In his § 2255 motion and amendment, the
petitioner raises ineffective assistance of his counsel,
Cheryl Whitley, in violation of the Sixth Amendment right to
counsel. Specifically, he alleges she was ineffective by:
1. failing to adequately advise him leading to his
sentencing, resulting in:
a. an incorrect description of a prior conviction in his
presentence investigation report (“PSR” ¶
42) which, in turn, makes him ineligible for assignment to a
prison camp and drug treatment program; and
b. an incorrect statement in the PSR (¶ 11) that he used
drugs in front of his children;
2. misleading him as to the contents of the plea agreement
regarding the length of his sentence; and
3. failing to object to the use of prior state convictions to
support “career criminal” status that were older
than the sentencing guidelines allow.
Court must grant a § 2255 motion when a petitioner's
“sentence was imposed in violation of the Constitution
or laws of the United States.” 28 U.S.C. § 2255.
However, “[r]elief under § 2255 is available
‘only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a
fundamental defect has occurred which results in a complete
miscarriage of justice.'” United States v.
Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting
Blake v. United States, 723 F.3d 870, 878-79 (7th
Cir. 2013)). It is proper to deny a § 2255 motion
without an evidentiary hearing if “the motion and the
files and records of the case conclusively demonstrate that
the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255(b); see Sandoval v. United States, 574
F.3d 847, 850 (7th Cir. 2009).
the grounds Hebbeler asserts as a basis for § 2255
relief rely on assertions of ineffective assistance of
counsel in violation of the Sixth Amendment. The Sixth
Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. This right to assistance of counsel encompasses
the right to effective assistance of counsel.
McMann v. Richardson, 397 U.S. 759, 771, n.14
(1970); Watson v. Anglin, 560 F.3d 687, 690 (7th
claiming ineffective assistance of counsel bears the burden
of showing (1) that his counsel's performance fell below
objective standards for reasonably effective representation
and (2) that this deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 688-94
(1984); Groves v. United States, 755 F.3d
588, 591 (7th Cir. 2014). To satisfy the first prong of the
Strickland test, the petitioner must direct the
Court to specific acts or omissions of his counsel. Wyatt
v. United States, 574 F.3d 455, 458 (7th Cir. 2009). The
Court must then consider whether, in light of all of the
circumstances, counsel's performance was outside the wide
range of professionally competent assistance. Id. To
satisfy the second prong of the Strickland test, the
plaintiff “must demonstrate ‘a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the
outcome.'” Harrington v. Richter, 562 U.S.
86, 104 (2011) (quoting Strickland, 466 U.S. at
694); accord Groves, 755 F.3d at 591.
to Rule 4(b) of the Rules Governing Section 2255 Proceedings
for the United States District Courts, the Court has
determined that it is plain from the motion and the record of
the prior proceedings that the ...