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Dearborn v. United States

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

July 17, 2019




         This matter is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (D. 1[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.


         In 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 4[2]) 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).


         On 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).

         On 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).

         After 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).

         Petitioner 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).

         On 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 follows.


         Motion to Vacate, Set Aside, or Correct Sentence

         A 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).

         A 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 ...

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