United States District Court, C.D. Illinois, Peoria Division
BRADLEY D. DEARBORN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner's Motion to
Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255 (D. 1), Motion for Leave to Conduct Discovery
(D. 3), and Motion for Summary Judgment (D. 11). For the
reasons stated below, Petitioner's Motions are DENIED.
2011, the Macomb Police Department and McDonough County
Sheriff's Department began investigating suspected sales
of illegal narcotics by Petitioner at an apartment on West
Calhoun Street in Macomb, Illinois. On November 17, 2011, and
December 13, 2011, officers carried out two controlled buys
from Petitioner at the apartment. On December 19, 2011,
officers executed a search warrant (Cr. D. 18-1 at
upon Petitioner and the property, seizing sixty grams of
crack cocaine and $360 in marked bills. During the search,
officers apprehended Petitioner, who admitted to being
involved in criminal narcotics activity. (Cr. D. 1 at 5). On
January 3, 2012, a warrant for Petitioner's arrest was
executed. (Cr. D. 9).
January 19, 2012, Petitioner was indicted on four counts:
conspiracy to distribute crack cocaine in violation of 21
U.S.C. § 841(a)(1), possession of cocaine base with
intent to distribute in violation of 21 U.S.C. §
841(b)(1)(A), and two counts of distribution of cocaine base
in violation of 21 U.S.C. § 841(b)(1)(C). (D. 4).
Petitioner entered a plea of not guilty and was appointed
counsel. Prior to trial, Petitioner moved to quash the search
warrant, arguing that the confidential informants were not
sufficiently reliable to establish probable cause. (Cr. D. 18
at 3-4). Petitioner also requested an evidentiary hearing
under Franks v. Delaware, 438 U.S. 154 (1978), to
determine whether the affiant made intentional or recklessly
misleading omissions that would jeopardize the probable cause
finding. (Cr. D. 18 at 4).
September 23, 2013, the Court denied Petitioner's motion
to suppress and his request for a Franks hearing,
finding that the controlled buys described in the complaint
for the search warrant adequately supported the
informants' reliability. (Cr. D. 67 at 22-23). After the
motion to suppress was denied, Petitioner changed his plea to
guilty but reserved his right to appeal the denial of his
motion. (Cr. D. 41). The prosecution dismissed the counts for
conspiracy and possession with intent to distribute, and the
Court sentenced Petitioner to 172 months in prison followed
by six years of supervised release. (Cr. D. 49).
his conviction, Petitioner urged his appellate attorney to
appeal the denial of his motion to suppress. After
researching the issue and discussing it with Petitioner,
counsel advised him that it was her professional duty not to
bring a claim that she and the Court would consider
frivolous. (D. 9-3, 9-4, 9-5). Instead, she challenged the
conditions of Petitioner's supervised release in light of
the Seventh Circuit's findings in United States v.
Thompson, 777 F.3d 368 (7th Cir. 2015). The prosecution
agreed with her challenge, and the Court of Appeals granted
the remand for resentencing, but Petitioner did not appeal
any other issues. United States v. Dearborn, No.
14-3032, 2015 U.S. App. LEXIS 23316 (7th Cir. Feb. 24, 2015).
then appealed his resentencing, insisting that the Court
should have granted his prior request for a Franks
hearing. (Cr. D. 143-1). The Seventh Circuit rejected this
argument, ruling that: (i) Petitioner failed to request a
Franks hearing during resentencing; (ii) Petitioner
waived the issue by not raising it during his first appeal;
(iii) Petitioner's appeal challenged his guilt, not his
sentencing; and (iv) Petitioner's request was outside the
scope of the district court's mandate at resentencing.
(Cr. D. 143-1 at 5). The Court of Appeals further ruled that
even if Petitioner had requested a Franks hearing,
he failed to demonstrate that such a hearing was necessary.
(Cr. D. 143-1 at 6).
December 31, 2018, Petitioner filed the instant Motion under
28 U.S.C. § 2255 (D. 1), alleging four grounds of
ineffective assistance of counsel, and a Motion for Leave to
Conduct Discovery (D. 3). On March 7, 2019, the Government
filed its Response (D. 9), and on March 28, 2019, Petitioner
filed his Reply (D. 10). Simultaneously, Petitioner filed a
Motion for Summary Judgment (D. 11) and an affidavit in
support of his § 2255 Motion (D. 12). On April 17, 2019,
the Government filed its Response to Petitioner's Motions
for Discovery and for Summary Judgment (D. 13), and on May
10, 2019, Petitioner filed his Reply (D. 14). This Order
to Vacate, Set Aside, or Correct Sentence
prisoner may file a § 2255 motion if his sentence
“was imposed in violation of the Constitution or laws
of the United States.” 28 U.S.C. § 2255(a) (2008).
Ordinarily, a movant may not raise issues he waived on direct
appeal unless there has been a change of circumstances in
fact or law. Olmstead v. United States, 55 F.3d 316,
319-20 (7th Cir. 1995). Ineffective assistance claims are not
subject to this procedural default. Massaro v. United
States, 538 U.S. 500, 503-04 (2003).
motion under 28 U.S.C. § 2255 “is confined to
correcting errors that vitiate the sentencing court's
jurisdiction or are otherwise of constitutional
magnitude.” Guinan v. United States, 6 F.3d
468, 470 (7th Cir. 1993) (internal citation omitted),
abrogated on other grounds by Massaro, 538 U.S. 500.
As such, it cannot act as a substitute for direct appeal.
Varela v. United States, 481 F.3d 932, 935 (7th Cir.
2007). It is an “extraordinary remedy, ”
Almonacid v. United States, 476 F.3d 518, 521 (7th
Cir. 2007), available “only in extraordinary
situations, ” Blake v. United States, 723 F.3d
870, 878-79 (7th Cir. 2013). In evaluating a § 2255
motion, “[t]he district court must review the record
and draw all reasonable inferences in favor of the