United States District Court, C.D. Illinois, Springfield Division
RICHARD MILLS, UNITED STATES DISTRICT JUDGE
Honorable has filed a motion to vacate, set aside or correct
sentence under 28 U.S.C. § 2255.
motion and supplemental motions are pending.
April 25, 2017, in Case Number 16-cr-30040, Petitioner Delphi
Honorable was sentenced to a term of 15 months for possession
with intent to distribute mixtures or substances containing a
detectable amount of heroin. The Petitioner was sentenced to
a consecutive term of 60 months for knowingly possessing a
firearm during and in relation to a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A)(i). The Court
also sentenced the Petitioner to 24 months' imprisonment
for violating the terms of his supervised release in Case
Number 97-cr-20057, to be served consecutively to his term in
Case Number 16-cr-30040.
Number 16-cr-30040, the Parties entered into a Plea
Agreement, which included language waiving the
Petitioner's right to appeal his sentence as well as
collaterally attack his sentence, except in limited
circumstances. The Petitioner did not file a direct appeal in
the criminal case.
Petitioner filed a pleading before the Seventh Circuit, which
that court ordered be construed as an initial motion for
relief under § 2255 and that a new case be opened.
25, 2018, the Petitioner's initial motion for relief was
filed. On August 3, 2018, he filed an amended motion to
vacate his sentence. The Government has filed a response.
initial motion, the Petitioner claims he is entitled to
relief under Sessions v. Dimaya, 138 S.Ct. 1204
(2018) and Johnson v. United States, 135 S.Ct. 2551
(2015). In Johnson, the Supreme Court held that the
imposition of an increased sentence under the residual clause
of the Armed Career Criminal Act is unconstitutionally vague.
Id. at 2563. That portion of the statute defined a
crime of violence as any crime punishable by a sentence of
more than one year that “has as an element the use,
attempted use, or threatened use of physical force against
the person of another.” 18 U.S.C. §
924(e)(2)(B)(i). In Dimaya, the Court held that
similar language in the Immigration and Nationality Act was
unconstitutional. 138 S.Ct. at 1223.
§ 2255 motion, the Petitioner claims the Supreme
Court's decisions affect his conviction under § 924.
The Petitioner's supplemental motion raises an
ineffective assistance of counsel claim.
Petitioner waived his right to appeal or collaterally attack
his sentence, except for claims of involuntariness or
ineffective assistance of counsel. The Petitioner's claim
under Johnson makes no mention of involuntariness or
ineffective assistance of counsel. Even if the waiver did not
apply, the Petitioner's claim under Johnson
fails because he was not convicted under the residual clause
of the Armed Career Criminal Act. Rather, he was convicted
pursuant to 18 U.S.C. § 924(c)(1)(A)(i) for carrying a
firearm in furtherance of a drug trafficking crime, not
pursuant to the residual clause under §
924(c)(1)(D)(3)(A). Accordingly, Johnson would not
the Petitioner asserts claims involving ineffective
assistance of counsel, the waiver does not preclude him from
filing this motion. See Hurlow v. United States, 726
F.3d 958, 965 (7th Cir. 2013). “[T]o prove ineffective
assistance of counsel, [a petitioner] must show that his
attorney's performance fell below an objective standard
of reasonableness and that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Kirklin v. United States, 883 F.3d 993, 996 (7th
Cir. 2018) (internal quotation marks omitted). The
presumption is that counsel advised his client effectively.
See Hutchings v. United States, 618 F.3d 693, 696-97
(7th Cir. 2010). “Only if the petitioner comes forward
with specific acts or omissions of his counsel that
constitute ineffective assistance will we then consider
whether these acts or omissions were made outside the wide
range of professionally competent assistance.”
Id. at 697 (internal quotation marks omitted).
Petitioner is unable to meet either prong. He does not
explain how counsel was ineffective or how that
ineffectiveness affected the outcome of this case. The
Petitioner does allege the firearm he possessed was not
connected to his drug dealing. However, he does not explain
why he pled guilty or how this is connected to his
ineffective assistance of counsel claim. As part of the
factual basis of his plea agreement, the Petitioner admitted
that he possessed a firearm in connection to his drug dealing
activities. Moreover, the Petitioner's § 2255 motion
includes the sentencing memorandum filed by prior counsel,
which is ...