United States District Court, C.D. Illinois, Springfield Division
MALCOLM J. NEAL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MYERSCOUGH, U.S. DISTRICT JUDGE
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.
before the Court is Petitioner's Motion to Amend (Doc.
6). For the reasons explained below, Petitioner's Motion
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,
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).
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
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).
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.
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
Government filed its response (Doc. 3) on September 19, 2016,
and Petitioner filed his reply (Doc. 5) on October 24, 2016.
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.
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 ...