United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Gottschall United States District Judge.
movant Eldred Claybrooks (“Claybrooks”),
sentenced after a trial to 120 months imprisonment, moves the
court to vacate his conviction and sentence pursuant to 28
U.S.C. § 2255. Claybrooks first argues that trial
counsel failed properly to advise him about the
government's offer to allow him to plead to a charge with
a four-year maximum sentence. He contends that his
lawyer's financial interest in taking the case to trial
created a conflict of interest. Second, Claybrooks contends
that he asked his lawyer to obtain the government's plea
offer in writing, but the lawyer did not do so. Third,
Claybrooks argues that his lawyer did not adequately
investigate the government's witnesses and that his
lawyer failed to impeach key government witnesses. Fourth,
Claybrooks says that his appellate lawyer was ineffective for
failing to challenge the jury instructions. Finally,
Claybrooks argues that his lawyer rendered ineffective
assistance when he did not challenge a citation error in the
government's information of a prior conviction used to
enhance his sentence. See 21 U.S.C. § 851.
following reasons, the court will set an evidentiary hearing
on Claybrooks' first claim, but the remaining claims are
was charged in a multi-defendant, multi-count indictment with
one count of conspiracy to possess with the intent to
distribute and one count of distributing at least 500 grams
of cocaine. See 21 U.S.C. §§ 846,
841(a)(1); Indictment, R. 110. Claybrooks retained the services
of Mr. David R. Jordan (“Jordan”), and he
represented Claybrooks through plea negotiations, trial, and
sentencing. Jordan retired from the practice of law in 2014
following a one-year suspension of his license to practice in
Illinois; the suspension was imposed based on his handling of
a probate matter. See Jordan Aff. ¶¶ 3-4,
ECF No. 11-2.
trial the government filed an information advising Claybrooks
that it intended to rely on a prior drug felony conviction to
seek an increased sentence. R. 249; see 21 U.S.C.
§§ 841(b), 851. The information cited the wrong
section of the Illinois Compiled Statutes (ILCS), however. It
stated that Claybrooks was convicted in the Circuit Court of
Cook County, Illinois, of possessing a controlled substance
with intent to deliver on or about April 11, 1996. R. 249 at
1. The statute of conviction was listed as “720 ILCS
570/402(1[sic](c)(2)”, id., a subsection that
does not, and did not, exist. Claybrooks concedes, and the
record shows, that he was convicted of violating the
preceding section of the Illinois Compiled Statutes, 720 ILCS
570/401(c)(2), on April 11, 1996, the date listed in the
information, and sentenced to serve four years.
Compare ECF No. 22 Ex. 1 at 21, with R.
249. No one brought this error to the court's attention
prior to sentencing or on direct appeal.
government attempted to negotiate a plea agreement under
which Claybrooks would receive a four-year sentence.
See Hr'g Tr. (Aug. 3, 2011), ECF No. 11-1 Ex. A
at 3:8-11. The maximum penalty for a violation of 21 U.S.C.
§ 843(b), commonly referred to as a “phone count,
” is four years. Jordan and the prosecutor both stated in
open court that Claybrooks was informed of the consequences
of going to trial. Hr'g Tr. (Aug. 3, 2011), ECF No. 11-1
Ex. A at 3:2-18. On one occasion the government offered the
phone count plea deal to Claybrooks in a conversation held in
the hallway. Petition14, ECF No. 1, Response 5, ECF No. 11;
Jordan Aff. ¶ 14, ECF No. 11-2 Ex. B. Claybrooks
rejected the offer. Petition 14, ECF No. 1; Jordan Aff.
¶ 14, ECF No. 11-2 Ex. B.
Trial, Sentencing, and Direct Appeal
the jury found Claybrooks guilty on both counts of drug
conspiracy and drug distribution. One of Claybrooks'
co-defendants, Robert Atkins (“Atkins”),
testified against Claybrooks. He identified Claybrooks'
voice on recordings of several phone calls played for the
jury in which the callers arranged and discussed cocaine
transactions. See United States v. Claybrooks
[“Claybrooks I”], 729 F.3d 699, 702-03 (7th
Cir. 2013) (summarizing trial evidence). The court initially
sentenced Claybrooks to serve 20 years, believing that
sentence to be the mandatory minimum sentence for the drug
quantity involved. See Claybrooks I, 729 F.3d at
703. Claybrooks appealed, raising two issues. The Seventh
Circuit first affirmed Claybrooks' conviction, holding
that the evidence admitted at trial was sufficient to convict
him of conspiring with Atkins to distribute cocaine.
Id. at 704-06. But the Seventh Circuit remanded the
case for clearer findings of the amount of drugs involved in
the offense, for sentencing purposes, and directed this court
to apply the Supreme Court's then-recent decision in
Alleyne v. United States, 570 U.S. 99 (2013), on
remand. Claybrooks I, 729 F.3d at 706-07. Applying
Alleyne, this court determined that Claybrooks'
mandatory minimum sentence was 10 years and held him
responsible under the advisory sentencing guidelines for
seven kilograms of cocaine. R. 639 at 39. Claybrooks'
advisory guidelines sentencing range came to 135-68 months.
United States v. Claybrooks [“Claybrooks
II”], 593 Fed.Appx. 550, 552 (7th Cir. 2014). The
court sentenced Claybrooks below that range to the 120-month
mandatory minimum. Claybrooks again appealed. Believing there
to be no nonfrivolous issues to appeal, Claybrooks'
lawyer sought leave to withdraw and filed a brief under
Anders v. California, 386 U.S. 738 (1967). The
Seventh Circuit granted the motion and affirmed.
Claybrooks II, 593 Fed.Appx. at 552.
Motion to Vacate, Correct, or Set Aside
§ 2255 motion, which he signed on March 31, 2015, was
timely entered on the docket on April 7, 2015. The court
ordered a response, ECF No. 4, and the government and
Claybrooks submitted an initial round of briefing. Gov't
Resp., ECF No. 11, Supplemented, ECF No. 17; Reply, ECF No.
21. The government attached to its response a purported
affidavit of Jordan responding to Claybrooks'
allegations. Jordan Aff., ECF No. 11-2 Ex. B. Jordan's
affidavit is not signed, dated, or notarized. Id.
Claybrooks then sought and obtained court permission to amend
his § 2255 motion to add two additional grounds for
relief and submit an affidavit responding to Jordan's.
See Suppl. § 2255 Mot., ECF No. 22; Claybrooks
Aff., id. at 28 Ex. 2. Claybrooks did not file a
separate amended petition. Instead his motion for leave to
supplement his petition, ECF No. 22, sets forth his
supplemental grounds for relief. The government filed a
supplemental response. ECF No. 30. Claybrooks replied. ECF
No. 31. And the government filed a surreply. ECF No. 32.
surreply is properly before the court, and Claybrooks has
responded to its substance. The government did not initially
seek leave to file it. For this reason, Claybrooks apparently
mailed the court two motions to strike the surreply. Those
motions apparently crossed in the mail with the
government's motion for leave to file its surreply.
See ECF No. 39 (reciting this history). The court
granted the government's motion for leave and gave
Claybrooks an opportunity to respond to the surreply
“[t]o avoid any confusion.” Id.
Claybrooks did not file a separate response to the surreply.
Nevertheless, portions of Claybrooks' motions to strike,
ECF Nos. 36, 37, respond to the substance of the surreply, so
the court will treat those arguments as properly before it.
28 U.S.C. § 2255, a person in custody for a federal
criminal conviction may move to vacate, set aside, or correct
a sentence “upon the ground that the sentence was
imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack . . . .” 28 U.S.C. § 2255(a);
see also Harris v. United States, 366 F.3d 593, 594
(7th Cir. 2004). Post-conviction relief is “an
extraordinary remedy” because a petitioner has already
“had an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th
Cir. 2007). It is neither a substitute for a direct criminal
appeal nor a means by which a defendant may appeal the same
claims a second time. See Varela v. United States,
481 F.3d 932, 935 (7th Cir. 2007).
if a movant fails to raise a claim on direct appeal, that
claim is barred in a collateral proceeding under § 2255
unless the movant can demonstrate cause for the procedural
default and actual prejudice from the failure to appeal.
See Sandoval v. United States, 574 F.3d 847, 850-51
(7th Cir. 2009). Because claims of ineffective assistance of
counsel usually involve evidence outside the trial record,
they may be raised for the first time in a § 2255
motion. See Massaro v. United States, 538 U.S. 500,
504 (2003). When deciding a § 2255 motion, the court
views the evidence “in a light most favorable to the
government.” United States v. Galati, 230 F.3d
254, 258 (7th Cir. 2000). “If ‘the files and
records of the case conclusively show that the prisoner is
entitled to no relief,' or if the allegations are too
vague and conclusory, then an evidentiary hearing is
unnecessary.” 28 U.S.C. § 2255(b) . . . . But if a
petitioner ‘alleges facts that, if true, would entitle
him to relief,' then an evidentiary hearing is
necessary.” Torres-Chavez v. United States,
828 F.3d 582, 586 (7th Cir. 2016).
court first considers the effect of Claybrooks' release
from prison. The Bureau of Prisons' website shows that
Claybrooks was released on July 3, 2019. Section 2255 permits
a prisoner who is “in custody” to move to vacate,
set aside, or correct a sentence. Claybrooks' release
does not prevent this court from considering his § 2255
motion, however, because he was in custody when he filed it.
The § 2255 “in custody” requirement applies
only when the motion is filed; the court may decide the
motion after the prisoner is released and even after any
period of supervised release has ended. Torzala v. United
States, 545 F.3d 517, 521 (7th Cir. 2008) (citing
Spencer v. Kemna, 523 U.S. 1, 7 (1998) and
Virsnieks v. Smith, 521 F.3d 707, 717-18 (7th Cir.
raises Sixth Amendment claims that he received ineffective
assistance from his retained counsel. “The Sixth
Amendment guarantees a defendant the effective assistance of
counsel at ‘critical stages of a criminal
proceeding,' including when he enters a guilty
plea.” Lee v. United States, 137 S.Ct. 1958,
1964 (2017) (citation omitted). The two-pronged test of
Strickland v. Washington, 466 U.S. 668 (1984),
ordinarily governs ineffective assistance claims. See
Id. Under Strickland, the defendant must
establish two things: (1) that “counsel's
representation ‘fell below an objective standard of
reasonableness'” and (2) “that [the
defendant] was prejudiced as a result.” Lee,
137 S.Ct. at 1964 (quoting Strickland, 466 U.S. at
688). If Claybrooks fails to make a proper showing under one
of the Strickland prongs, the court need not
consider the other. See Strickland, 466 ...