Isbell v. USA
Filing
19
ORDER granting 11 Government's Motion to Dismiss; and dismissing 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence (2255). Civil Case Terminated. Entered by Judge Michael M. Mihm on 12/7/2011. (cc: Pro Se Petitioner Isbell)(RK, ilcd)
E-FILED
Wednesday, 07 December, 2011 03:38:33 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ISRAEL CARL ISBELL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 11-1230
ORDER
This matter is now before the Court on Petitioner, Israel Carl Isbell’s (“Isbell”),
Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 and the
Government’s Motion to Dismiss. For the reasons set forth below, the Motion to
Dismiss [#11] is GRANTED, and Isbell’s § 2255 Motion [#1] is DISMISSED.
BACKGROUND
On March 5, 2010, Isbell entered a guilty plea pursuant to a written plea
agreement to receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A)
and 2252(A)(b)(1). That same day, Isbell executed a Statutory and Appeal Waiver
waiving his right to appeal his conviction and sentence and his right to collaterally attack
his conviction and sentence in exchange for the Government’s dismissal of one count of
possession of child pornography. On June 25, 2010, he was sentenced to a term of 180
months’ imprisonment, a sentence that was within the U.S.S.G. range.
In his section 2255 motion, Isbell attempts to collaterally attack his conviction
based on allegations of ineffective assistance of counsel. Specifically, Isbell argues that
his counsel erroneously advised that any appeal would be “fruitless” if he were to
receive a within-guidelines sentence, that his counsel erroneously advised him that,
notwithstanding his waiver of appeal and waiver of collateral attack, he could still seek a
lower sentence if there was a subsequent, favorable change in USSG §2G2.2, and that
his counsel was ineffective by virtue of not having Isbell psychologically examined.
On July 12, 2011, the Government filed its Motion to Dismiss [#11].
Isbell
subsequently requested and was granted three separate extensions of time to respond
to the Motion to Dismiss. The deadline for responsive pleadings was November 18,
2011; Isbell failed to file his traverse within that timeframe. The Court notes that on
November 8, 2011, the office of the Deputy Clerk for the Peoria Division received a
letter from Isbell which attempted to dispute the Court’s deadline for responsive
pleadings. However, Isbell indicated that “[he’s] not filing a formal motion here, but a
simple change of address.” [#18 at 1]. This Order follows.
STANDARD
"[R]elief under § 2255 is an extraordinary remedy because it asks the district
court essentially to reopen the criminal process to a person who already has had an
opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir.
2007). Under section 2255, relief "is available only when the '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." Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008)
(quoting 28 U.S.C. § 2255). A section 2255 motion is not a substitute for a direct appeal;
see Doe v. United States, 51 F.3d 693, 698 (7th Cir.), cert. denied, 116 S. Ct. 205
(1995); nor is it 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).
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Because claims of ineffective assistance of counsel usually involve evidence
outside of the trial record, such claims may be brought for the first time in a section
2255 motion. Calabrese v. United States, 2011 U.S. Dist. LEXIS 106195 (N.D. Ill. Sept.
16, 2011); citing Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155
L.Ed.2d 714 (2003). As such, the Court finds that Isbell has not procedurally defaulted
his ineffective assistance of counsel claims.
DISCUSSION
The seminal case on ineffective assistance of counsel is Strickland v.
Washington, 466 U.S. 668 (1984). In Strickland, the Court stated that in order for a
prisoner to demonstrate that counsel's performance fell below the constitutional
standard, the petitioner would have to show that "counsel's representation fell below an
objective standard of reasonableness." Strickland, 466 U.S. at 687-88.
A prisoner
must also prove that he has been prejudiced by his counsel's representation by showing
"a reasonable probability that but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. The courts, however, must "indulge
a strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance." Id. at 690.
To satisfy Strickland’s prejudice prong in this case, Isbell must demonstrate
through objective evidence a reasonable probability that, but for counsel’s purportedly
erroneous advice, he would not have entered the guilty plea and would have insisted
upon going to trial. United States v. Woolley, 123 F.3d 627, 635 (7th Cir. 1997). “It is
far from obvious how a petitioner is expected to make such a showing, but it is clear that
‘merely making such an allegation is insufficient.’” United States v. Ryan, 986 F.Supp.
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509, 513 (N.D.Ill. 1997), citing Key, 806 F.2d at 139; see also McCleese v. United
States, 75 F.3d 1174, 1179 (7th Cir. 1996) (requiring that the petitioner establish through
objective evidence that he would not have accepted the plea).
Here, Isbell argues that his counsel erroneously advised that any appeal would
be “fruitless” if he were to receive a within guidelines sentence. He cites to a number of
cases – none of which are controlling cases that reversed a within-guidelines sentence
– to argue that the advice counsel gave him caused Isbell “to make an uninformed
decision regarding such waiver.” [#1 at 2]. Counsel’s advice that an appeal of withinguideline sentences would be unlikely to succeed is an accurate evaluation given the
Seventh Circuit’s presumption of reasonableness for properly calculated, withinguideline sentences. See United States v. Craig, 420 Fed. Appx. 605, 607 (7th Cir. Ill.
2011), United States v. Mantanes, 632 F.3d 372, 377 (7th Cir. 2011). The Court rejects
Isbell’s Strickland claim on this ground because Isbell suffered no prejudice as a result
of counsel’s allegedly erroneously advice.
Isbell also claims that his counsel erroneously advised him that he could seek a
lower sentence should there be a subsequent favorable change in USSG §2G2.2.
Again, Isbell maintains that the advice given regarding the appeal waiver “caused the
Defendant to make an uninformed decision regarding such waiver.” [#1 at 2]. Even if
his contention was true, it falls far below the standard required by this Circuit – that but
for counsel’s purportedly erroneous advice, he would not have entered into the waiver.
Woolley at 635. As such, the Court finds that Isbell suffered no prejudice and his
ineffective assistance of counsel claims fails with respect to this argument.
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Finally, Isbell argues that his counsel’s “failure to… initiate [a psychological
evaluation] into Defendant’s mental history” rises to the level of ineffective assistance of
counsel. [#1 at 4]. Initially, Isbell does not explain the significance, if any, of the lack of
a psychological examination in his case. Instead, he merely suggests “it is questionable
wether [sic] this Defendant should have been allowed to take such plea and sign such
waiver without being afforded a psychological evaluation.” [#1 at 3]. According to Isbell,
his case is best analogized to Brown v. Sternes, 304 F.3d 677 (7th Cir. 2002), where
the Seventh Circuit found ineffective assistance of counsel where "because of the
failure of [Brown's attorneys] to discover and to bring Brown's mental problems and
medical history to the court's attention, his trial and sentencing were conducted without
the benefit of the knowledge of the severity of his mental condition." Id. at 697. The
case at hand is distinguishable from Brown because the Court was aware of Isbell’s
mental and emotional health as detailed in his Presentence Investigation Report.
Furthermore, when the Court accepted Isbell’s guilty plea, it held a lengthy
change of plea hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure.
During this hearing, the Court repeatedly asked and confirmed that Isbell understood
the Statutory and Appeal Waiver. See generally, [#11 at 8-11]. The Seventh Circuit
holds that “a guilty plea after a Rule 11 colloquy enjoys ‘a strong presumption of verity.’”
United
States
v.
White,
597
F.3d
863,
868
(7th
Cir.
2010)
citing United States v. Bennett, 332 F.3d 1094 (7th Cir. 2003). The Court finds that
nothing in the record remotely suggests that Isbell did not knowingly and voluntarily
enter the plea agreement, including the waiver provisions contained therein. To the
contrary, it clearly indicates that he expressly waived his rights to appeal and pursue
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collateral relief on more than one occasion after extensive questioning and explanation
by the Court. The record also demonstrates that the Court provided him with a lengthy
and detailed explanation of the waiver provisions. After receiving this explanation, Isbell
proceeded to state on more than one occasion that he was acting voluntarily and
understood everything as it had been explained to him by the Court.
Isbell has failed to demonstrate that ineffective assistance of counsel negated the
knowing or voluntary nature of his plea or the waiver itself. Accordingly, the Court now
holds that Isbell’s waiver of his right to pursue collateral relief was both knowing and
voluntary and, as such, this section 2255 Motion is frivolous. See Mason v. United
States, 211 F.3d 1065, 1069 (7th Cir. 2000); Jones v. United States, 167 F.3d 1142,
1145 (7th Cir. 1999); Roberts v. United States, 429 F.3d 723, 724 (7th Cir. 2005).
CONCLUSION
For the reasons set forth herein, the Court cannot find that there has been any
credible showing that, but for the alleged unprofessional errors of counsel, there is any
reasonable probability that the result of this proceeding would have been different. The
record clearly demonstrates that Isbell knowingly, intelligently, and voluntarily waived
his right to bring both an appeal and collateral attack on his conviction and sentence.
Accordingly, the Government’s Motion to Dismiss [#11] is GRANTED, and Isbell’s
Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [#1] is
DISMISSED. This matter is now terminated.
ENTERED this 7th day of December, 2011.
/s/ Michael M. Mihm
Michael M. Mihm
United States District Judge
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