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Neal v. United States

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

July 19, 2019

MALCOLM J. NEAL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE

         This cause is before the Court on Petitioner Malcolm J. Neal's Motion to Vacate Sentence Under 28 U.S.C. § 2255 (Doc. 1). In light of Garza v. Idaho, 139 S.Ct. 738 (2019), the Court finds that, if Petitioner's allegations are true, he is entitled to pursue his appeal. The Government is DIRECTED to file a supplemental response on or before August 2, 2019, advising the Court as to whether an evidentiary hearing is needed.

         Also before the Court is Petitioner's Motion to Amend (Doc. 6). For the reasons explained below, Petitioner's Motion is DENIED.

         I. BACKGROUND

         In May 2015, a federal grand jury charged Petitioner with numerous drug trafficking offenses and related counts. See United States v. Neal, United States District Court, Central District of Illinois, Springfield Division, No. 3:15-cr-30022 (hereinafter, Crim.), Indictment (d/e 1). On August 8, 2015, Petitioner pleaded guilty pursuant to a written plea agreement to two of the charges: Conspiracy to Distribute 100 Grams or More of Heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B) (Count 1), and Possession of Firearms in Furtherance of a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 9). Crim., Plea Agreement (d/e 10); Minute Entry Aug. 8, 2015.

         As part of his plea agreement, Petitioner agreed to waive his right to direct appeal and collateral attack. The plea agreement stated that “the defendant knowingly and voluntarily waives the right to appeal any and all issues relating to this plea agreement and conviction and to the sentence, including any fine or restitution, within the maximum provided in the statute of conviction, and the manner in which the sentence, including any fine or restitution, was determined, on any ground whatever, in exchange for the concessions made by the United States in this plea agreement. The waiver in this paragraph does not apply to a claim of involuntariness or ineffective assistance of counsel.” Crim., Plea Agreement at ¶25 (d/e 10).

         The United States Probation Office prepared a revised Presentence Investigation Report. Crim., RPSR (d/e 19). Petitioner was subject to a statutory mandatory minimum term of imprisonment of five years and a maximum term of 40 years on Count 1, and a statutory mandatory minimum term of imprisonment of five years to a maximum of life on Count 9, to be served consecutively to Count 1. See 21 U.S.C. § 841(b)(1)(B); 18 U.S.C. § 924(c)(1)(A)(i). The revised PSR concluded that his advisory sentencing guideline range was 100 to 125 months' imprisonment on Count 1, and 60 months' imprisonment on Count 9. Crim., RPSR at ¶108.

         At the sentencing hearing on December 18, 2015, the Court accepted Petitioner's guilty plea. The Court sentenced Petitioner to a below guidelines sentence of 80 months' imprisonment on Count 1, and 60 months' imprisonment on Count 9, to run consecutively to Count 1, for a total imprisonment sentence of 140 months. The Judgment issued the same day. Crim., Judgment (d/e 24).

         On June 1, 2016, Petitioner filed a belated Notice of Appeal. Crim., Notice of Appeal (d/e 27); United States v. Neal, No. 16-2332 (7th Cir.). Petitioner argued that his untimely appeal should be allowed because he had instructed his counsel to file a Notice of Appeal, but his counsel had failed to do so. The Government filed a response on June 21, 2016, arguing that, while Petitioner may have a claim of ineffective assistance of counsel regarding his counsel's failure to file a notice of appeal, such a claim was properly brought under 28 U.S.C. § 2255 and did not excuse his untimely notice of appeal. The Seventh Circuit dismissed his appeal as untimely on June 27, 2016.

         On August 18, 2016, Petitioner filed this Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1), raising the claim that he received ineffective assistance of counsel when his counsel failed to file a notice of appeal after being instructed to do so by Petitioner. Motion at 4-5 (Doc. 1).

         The Government filed its response (Doc. 3) on September 19, 2016, and Petitioner filed his reply (Doc. 5) on October 24, 2016.

         Petitioner then filed a Motion to Amend (Doc. 6) on May 1, 2017, seeking to add claims that his counsel was ineffective for failing to file a motion to suppress, and that proceedings before the Court were void because his counsel did not file a notice of appearance in violation of “Federal Rule Procedure 57.1.” Mot. to Amend at 6-7 (Doc. 6). The Government filed a Response to the Motion to Amend (Doc. 7) on May 15, 2017, arguing that his additional claims are untimely. Petitioner filed an untimely reply (Doc. 10) nearly a year later on April 30, 2018. This Order follows.

         II. ANALYSIS

         A person convicted of a federal crime may move to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Relief under § 2555 is an extraordinary remedy because a § 2255 petitioner has already had “an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). “[I]t is generally proper to raise arguments of ineffective assistance of counsel for the first time on collateral review in a § 2255 petition ...


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