Clark v. United States of America
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 6/17/13. IT IS ORDERED that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 1 is DENIED, and the Court DECLINES to issue a certificate of appealability. CASE TERMINATED. SEE FULL ORDER. (FDT, ilcd)
E-FILED
Monday, 17 June, 2013 11:25:25 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
KENNETH CLARK,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 13-cv-1026
ORDER & OPINION
This matter is before the Court on Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255.
(Doc. 1).
Respondent filed a
Response (Doc. 5), and Petitioner filed a Reply (Doc. 6). For the reasons stated
below, Petitioner’s § 2255 Motion is denied.
Petitioner also requested an evidentiary hearing on his claim. (Doc. 1 at 27).
While the Court should hold an evidentiary hearing if Petitioner “alleges facts that,
if proven, would entitle him to relief,” Petitioner has failed to meet this burden here.
See Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). Accordingly,
because the factual issues relevant to Petitioner’s claims in this action can be
resolved on the record, an evidentiary hearing is not required. Oliver v. United
States, 961 F.2d 1339, 1343 n.5 (7th Cir. 1992) (“No hearing is required in a section
2255 proceeding . . . if the factual matters raised by the motion may be resolved on
the record before the district court.”). Thus, Petitioner’s request for evidentiary
hearing is also denied.
BACKGROUND
In January 2010, after a jury trial in this Court, Petitioner was convicted of
possession of fifty grams or more of cocaine base with intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). See Judgment, United States v.
Clark, No. 09-cr-10067 (C.D. Ill. Jan. 7, 2010), ECF No. 85. Petitioner filed an
appeal, but the Seventh Circuit affirmed the judgment. United States v. Clark, 657
F.3d 578, 586 (7th Cir. 2011).
The general minimum statutory sentence for a defendant who violates 21
U.S.C. § 841(b)(1)(A) begins at ten years of imprisonment with five years of
supervised release, but the statute increases this minimum to at least twenty years
of imprisonment with ten years of supervised release if the defendant has a prior
felony drug conviction. See 21 U.S.C. § 841(b)(1)(A). In 1990, Petitioner pleaded
guilty to possession of a controlled substance in violation of 720 Ill. Comp. Stat.
570/402, and the Illinois state court sentenced him to 30 months’ probation
pursuant to a first-time offender statute, 720 Ill. Comp. Stat. 570/410.1 (Doc. 1 at
16). Petitioner successfully completed his probation for this offense in 1993.
In the instant case, the government gave notice of its intent to seek an
enhancement of Petitioner’s sentence based on the prior state felony drug conviction
pursuant to 21 U.S.C. § 851.
See Notice of Intent to Use Evidence of Prior
Conviction, United States v. Clark, No. 09-cr-10067 (C.D. Ill. July 7, 2009). After
the jury’s guilty verdict, the government included this prior conviction in its
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Ill. Comp. Stat. 570/402 and 720 Ill. Comp. Stat. 570/410 were formerly cited
as Ill. Stat. Ch. 56 1/2 ¶ 1402 and Ill. Stat. Ch. 56 1/2 ¶ 1410, respectively. Although
the citations to the statutes have changed, the relevant provisions have not, unless
noted otherwise.
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presentence investigation report; Petitioner responded to the presentence
investigation report with a number of objections, but did not object to or deny the
conviction at issue.
See Defendant’s Objections to the Presentence Investigation
Report, United States v. Clark, No. 09-cr-10067 (C.D. Ill. Mar. 30 2010), ECF No. 76.
The Court then sentenced Petitioner with the enhanced minimum statutory term of
twenty years of imprisonment with ten years of supervised release. See Judgment,
United States v. Clark, No. 09-cr-10067 (C.D. Ill. Jan. 7, 2010), ECF No. 85.
Petitioner subsequently filed a § 2255 Motion, alleging that his prior Illinois
conviction for possession of cocaine was not a “felony drug offense,” that his
sentence was improperly enhanced, and that his trial and appellate counsel
provided ineffective assistance by failing to raise this issue at sentencing or on
direct appeal. (Doc. 1 at 17).
DISCUSSION
A sentence may be vacated, set aside, or corrected pursuant to § 2255 if the
sentence “was imposed in violation of the Constitution or laws of the United States.”
28 U.S.C. § 2255(a). “[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). Thus, § 2255 is limited to correcting errors of a
constitutional or jurisdictional magnitude or errors constituting a fundamental
defect that results in a complete miscarriage of justice. E.g., Belford v. United
States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos
v. United States, 26 F.3d 717 (7th Cir. 1994).
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“A § 2255 motion is not a substitute for a direct appeal.” Coleman v. United
States, 318 F.3d 754, 760 (7th Cir. 2003). Where a petitioner fails to appeal his
sentence, his claims in a § 2255 motion may be procedurally barred. Constitutional
issues are barred unless the petitioner can show good cause for and prejudice from
the failure to appeal the issue, or if refusal to hear the issue would result in a
fundamental miscarriage of justice. See Prewitt v. United States, 83 F.3d 812, 816
(7th Cir. 1996). An ineffective assistance of counsel claim, however, may be raised
in a § 2255 motion regardless of whether it could have been raised on appeal and is
not subject to procedural default analysis. Massaro v. United States, 538 U.S. 500,
504 (2003). As Petitioner solely raises a claim of ineffective assistance of counsel, it
is not procedurally barred.
Because there is a strong presumption that counsel is effective, however, to
succeed on a claim for ineffective assistance of counsel, Petitioner must show both
that his counsel’s performance was deficient and that he was prejudiced by the
deficiency such that the result would have been different without the error.
Strickland v. Washington, 466 U.S. 668, 687-91 (1984); see also, e.g., Fountain v.
United States, 211 F.3d 429, 434 (7th Cir. 2000). While Petitioner must satisfy both
prongs to succeed on his claim, “a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant
as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697. Rather, “[i]f it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.” Id.
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Petitioner asserts that he received ineffective assistance of counsel at the
sentencing and appellate phases because his counsel failed to “(1) object to the 21
U.S.C. § 851 information and the application of the enhance [sic] penalty of 21
U.S.C. § 841(b)(1)(a) and or (2) argue on appeal that the prior Illinois drug
conviction did not qualify as a prior felony drug offense under 21 U.S.C. § 802(44).”
(Doc. 1 at 17). As the Court has determined that the result of the proceeding would
not have been different regardless of any alleged deficiencies on the part of his
counsel, it will direct its analysis to the prejudice prong.
The Court imposed an enhanced sentence under § 841(b)(1)(A) on the basis
that Petitioner had a prior state felony drug offense. “The term ‘felony drug offense’
means an offense that is punishable by imprisonment for more than one year under
any law of the United States or of a State or foreign country that prohibits or
restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or
depressant or stimulant substances.” 21 U.S.C. § 802(44). Petitioner argues that
his prior conviction does not qualify as a “felony drug offense” under 21 U.S.C.
§802(44), because “the state court was instructed to impose a sentence no greater
than 30 months of probation,” and thus, he could not have been punished by
imprisonment for more than one year. (Doc. 1 at 18-19). Petitioner relies heavily
on the Supreme Court’s precedent in Carachuri-Rosendo v. Holder, 130 S.Ct. 2577
(2010), to support his argument. The Court, however, rejects Petitioner’s argument
for a number of reasons.
First, Petitioner’s assertion that “[t]he only statutory discretion granted to
sentencing courts [under 720 Ill. Comp. Stat. 570/410] was to impose a sentence of
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probation up to 30 months” is simply mistaken. The statute provides that a court
may sentence a defendant to probation, but allows it the discretion to sentence a
defendant otherwise.
720 Ill. Comp. Stat. 570/410(a).
Moreover, Petitioner’s
“argument is frivolous because a drug offense need only be punishable by
imprisonment for more than one year to qualify as a felony . . . and a sentence of
probation does not affect that classification.” United States v. Stokes, 351 F. App’x
115, 116 (7th Cir. 2009); see also Burgess v. United States, 553 U.S. 124, 129-30
(2008) (“When a statute includes an explicit definition, we must follow that
definition,” and to follow that definition, a court must “exclude[] any meaning that
is not stated.” (citations omitted)).
While Petitioner consistently refers to the
limiting nature of 720 Ill. Comp. Stat. 570/410 and alleges that “he could not have
been sentenced to more than 30 months of probation,” he offers no facts to support
this assertion. (Doc. 6 at 3). Rather, Petitioner relies on the Supreme Court’s
holding in Carachuri-Rosendo to propose that his case should be remanded for
further consideration because other cases with “similar arguments” were also
remanded. (Doc. 1 at 23). The Court has reviewed these other cases and will refer
primarily to one decision from the Eighth Circuit that it finds truly analogous for
comparison. See United States v. Haltiwanger, 637 F.3d 881 (8th Cir. 2011).
In Haltiwanger, a defendant was found guilty of violating 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A), and the district court sentenced him to an enhanced
sentence of twenty years in prison, based on what it deemed a prior felony drug
offense for failure to affix a drug tax stamp. Id. at 882. The defendant appealed the
enhanced sentence, arguing that “his tax stamp conviction is not a felony drug
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offense because he could not have been sentenced to more than seven months of
imprisonment under the Kansas Sentencing Guidelines.” Id. The Eighth Circuit
affirmed the sentence, but the Supreme Court granted Petitioner’s petition for writ
of certiorari, vacated the appellate court judgment, and remanded the case for
further consideration in light of its holding in Carachuri-Rosendo. Id.
On remand, the Eighth Circuit reversed the defendant’s sentence, applying
the principles it found relevant from Carachuri-Rosendo, namely, “the Supreme
Court’s explanation of the importance the presence of an actual recidivism
enhancement in a particular case plays in determining the maximum term of
imprisonment.”2
Id. at 883-84.
The Eighth Circuit further explained that “an
actual recidivist finding-rather than the mere possibility of a recidivist finding-must
be part of a particular defendant’s record of conviction for the conviction to qualify
as a felony.”
Id. at 884.
In analyzing the case before it, the appellate court
considered the defendant’s personal criminal history and found that there was no
actual recidivist finding in the his record of conviction, because his criminal history
under the Kansas sentencing structure would have only exposed him to a maximum
sentence of seven months of imprisonment. Id. The court came to this conclusion
based on two factors: 1) defendant’s status as a nonrecidivist with a criminal history
category of I under the Kansas sentencing structure, and; 2) the tax stamp offense’s
classification as a level 10 felony, which could “trigger a sentence in excess of twelve
months only for recidivists with three or more felonies involving offenses against
persons.” Id. at 882, 884. Thus, the appellate court concluded that the “hypothetical
Circuit Judge Beam dissented, finding that the Eighth Circuit’s original judgment
“is not affected by Carachuri-Rosendo.” Haltiwanger, 637 F.3d 881 at 884.
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possibility that some recidivist defendants could have faced a sentence of more than
one year is not enough to qualify [defendant’s] conviction as a felony under 21
U.S.C. § 841(b)(1),” and reversed the defendant’s sentence accordingly. Id.
Unlike the defendant in Haltiwanger, however, Petitioner was a defendant
who could, and did, face a sentence of more than one year; the fact that the state
court chose to use its discretion to impose a more lenient sentence of probation is
irrelevant. In Haltiwanger, the offense itself carried a limitation that could only
trigger a sentence of twelve months or more in certain limited circumstances. See
also United States v. Simmons, 649 F.3d 237, 240-41 (vacating and remanding a
defendant’s enhanced sentence based on a prior Class I felony that could only have
exceeded twelve months’ imprisonment if it satisfied certain conditions).
Here,
however, Petitioner’s prior conviction did not carry such a limitation, as it is a Class
4 felony directly punishable by “a determinate sentence of not less than one year
and not more than 3 years.” 720 Ill. Comp. Stat. 570/402(c); 730 Ill. Comp. Stat.
5/5-4.5-45(a). Cf. Carachuri-Rosendo, 130 S. Ct. at 2585 (rejecting an aggravated
felony classification for two prior state misdemeanor convictions that could have
been classified as an aggravated felony under the Immigration and Nationality Act.)
Petitioner repeatedly asserts that regardless of the general sentence that 720
Ill. Comp. Stat. 570/420 imposes, because of 720 Ill. Comp. Stat. 570/410, he still
“could not have been sentenced to more than 30 months of probation” and that “the
sentencing statute did not permit a sentence ‘punishable by imprisonment for more
than one year.’” (Doc. 6 at 3); (Doc. 1 at 19). The Court, however, disagrees. As
stated before, the sentencing statute itself carries no such language or limitation;
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Petitioner could have been sentenced to a term of imprisonment, but the state court
chose to exercise its discretion to sentence him to probation instead; unlike the
defendant in Haltiwanger, Petitioner did not offer any additional facts particular to
his personal criminal history that give any indication that he could not have been
sentenced for one year or more. Thus, alleging that his “prior Illinois conviction
does not qualify as a felony drug offense given [Petitioner’s] first-time offender
status and that the Illinois sentencing statute mandates a sentence of probation” is
simply mistaken. (Doc. 1 at 26). The state court’s decision to use its discretion
under 720 Ill. Comp. Stat. 570/410 did not change its ability to sentence Petitioner
to a term of imprisonment. Furthermore, because the Court finds that Petitioner
would have been properly sentenced with the enhancement regardless of whether
his sentencing or appellate counsel raised the issue, it does not find that Petitioner
would have been prejudiced either way, and thus rejects his ineffective assistance of
counsel claim.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing § 2255 Proceedings, the Court
“must issue or deny a certificate of appealability when it enters an order adverse to
the applicant.” A certificate of appealability may only be issued where the petitioner
“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). This requirement has been interpreted by the Supreme Court to mean
that an applicant must show that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). If the district court denies the certificate, a petitioner may
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request that a circuit judge issue one. Fed. R. App. P. 22(b)(1). Based upon the
record before it, the Court cannot find that reasonable jurists would debate that
Petitioner’s ineffective assistance of counsel claim is without merit. Accordingly, the
Court declines to issue a certificate of appealability.
CONCLUSION
IT IS THEREFORE ORDERED that Petitioner’s Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED, and the
Court DECLINES to issue a certificate of appealability.
CASE TERMINATED.
Entered this 17th day of June, 2013.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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