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Claybrooks v. United States

United States District Court, N.D. Illinois, Eastern Division

August 1, 2019



          Joan B. Gottschall United States District Judge.

         Pro se 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.

         For the following reasons, the court will set an evidentiary hearing on Claybrooks' first claim, but the remaining claims are unavailing.

         I. Background

         Claybrooks 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.[1] 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.

         A. Pre-Trial Proceedings

         Before 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.

         The 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.[2] 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.

         B. Trial, Sentencing, and Direct Appeal

         In 2011 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[3] 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.

         C. Motion to Vacate, Correct, or Set Aside Sentence

         Claybrooks' § 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.

         The 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.

         II. Legal Standard

         Under 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).

         Thus, 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).

         III. Analysis

         The 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. 2008)).

         Claybrooks 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 ...

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