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United States v. Freeman

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

October 29, 2019

WALTER FREEMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          Sharon Johnson Coleman United States District Judge

         On March 12, 2018, pro se petitioner Walter Freeman filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated below, the Court denies Freeman's § 2255 motion and declines to certify any issues for appeal. 28 U.S.C. § 2253(c)(2).

         Background

         On September 6, 2012, a grand jury for the Northern District of Illinois returned a five-count indictment charging Freeman with distribution of 28 grams or more of a mixture containing cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count 1); distribution of a controlled substance containing a quantity of cocaine base in violation of § 841(a)(1) (Count 2); felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count 3); distribution of marijuana in violation of § 841(a)(1) (Count 4); and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count 5). Pursuant to a written plea agreement, Freeman pleaded guilty to Counts 1 and 5. In the addendum to the plea agreement, Freeman stipulated to the commission of a third offense from another federal indictment, namely, felon in possession of a firearm under § 922(g). The Court sentenced Freeman to 132 months on Count 1 and the stipulated § 922(g)(1) offense, which was below the sentencing guidelines range, and 60 months on Count 5, to run consecutively.

         Freeman appealed his sentence arguing that the Court erred by: (1) failing to use the 1:1 crack powder ratio instead of the 18:1 ratio under the guidelines; (2) concluding that his criminal history category was not overstated; and (3) allowing its frustration with his litigation tactics to affect his sentence. The Seventh Circuit affirmed.

         Construing Freeman's pro se § 2255 motion liberally, see Chronis v. United States, 932 F.3d 544, 554 (7th Cir. 2019), he argues that the Court erred in denying his motion to dismiss the indictment for possession of a firearm in furtherance of a drug trafficking crime because trading guns for drugs does not satisfy the “in furtherance” requirement under § 924(c). Freeman also brings several ineffective assistance of counsel claims.

         Legal Standard

         “Relief under [§ 2255] is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013); see also Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006) (“Motions to vacate a conviction or sentence ask the district court to grant an extraordinary remedy to one who already has had an opportunity for full process.”). To obtain relief under § 2255, a petitioner must show that his “sentence was imposed in violation of the Constitution or laws of the United States, the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack.” Swanson v. United States, 692 F.3d 708, 714 (7th Cir. 2012) (citation omitted). If a § 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, or that enforcing the procedural default would lead to a fundamental miscarriage of justice. See Lund v. United States, 913 F.3d 665, 667 (7th Cir. 2019); Farmer v. United States, 867 F.3d 837, 842 (7th Cir. 2017). Because Sixth Amendment ineffective assistance of counsel claims often involve evidence outside of the trial record, such claims may be brought for the first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500, 504 (2003).

         Discussion

         Possession of a Firearm in Furtherance of a Drug Trafficking Crime

         Freeman contends that the Court erred when it denied his motion to dismiss Count 5 of the indictment for possession of a firearm in furtherance of drug trafficking crime because an exchange of drugs for guns does not satisfy the “in furtherance” requirement under § 924(c)(1)(A). Freeman, however, did not bring this argument on direct appeal to the Seventh Circuit, therefore, he has procedurally defaulted it. The Court cannot review the merits of this claim unless Freeman establishes an exception to this default. After carefully reviewing Freeman's pro se filings, he does not address how his default is excepted.

         Even if Freeman had not procedurally defaulted his claim, it fails on the merits because controlling Seventh Circuit caselaw unequivocally holds that the exchange of drugs for guns constitutes possession “in furtherance” of a drug trafficking offense. See United States v. Harper, 934 F.3d 524, 528 (7th Cir. 2019) (“Receiving a gun in exchange for drugs” “qualifies as possession of a firearm in furtherance of a drug-trafficking crime.”) (citing United States v. Doody, 600 F.3d 752, 753 (7th Cir. 2010)). Freeman asks this Court to overrule Doody, which the Court cannot do as a federal district court. Clark v. Maurer, 824 F.2d 565, 567 (7th Cir. 1987).

         Moreover, Freeman's arguments concerning the residual clause of § 924(c) and the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), are without merit because he was charged and sentenced for possession of a firearm in furtherance of a drug trafficking crime pursuant to § 924(c)(1)(A) and not the residual clause under § 924(c)(3)(B).

         Ineffective Assistance ...


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