Stanley v. United States of America
Filing
9
OPINION Entered by Judge Sue E. Myerscough on 11/10/2015. The United States of America's Motion to Dismiss Petitioner's Motion Pursuant to 28 U.S.C. Section 2255, d/e 6 is GRANTED. The Petitioner's Motion Under 28 U.S.C. Section 2 255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, d/e 1 is DENIED. Because Petitioner has not made a substantial showing of the denial of a constitutional right, the Court also denies a certificate of appealability under Rule 11(a) of the Rules Governing Section 2255 Proceedings. This case is CLOSED. (MAS, ilcd) Modified on 11/12/2015 (MAS, ilcd).
E-FILED
Thursday, 12 November, 2015 12:30:42 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KRISTOPHER L. STANLEY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
)
)
)
)
)
)
)
)
)
3:15-cv-2009
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Petitioner Kristopher Stanley has filed a Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody (Civ. d/e 1). Stanley is currently in federal
prison, after having pleaded guilty to possession of a firearm in
furtherance of a drug trafficking crime. He argues that the Court
should vacate his sentence because his attorney was ineffective and
coerced him into pleading guilty.
The United States of America has filed a motion to dismiss
Stanley’s Section 2255 motion (Civ. d/e 6).
I.
Background
Stanley was arrested in 2013, after fleeing on foot from a
Page 1 of 17
traffic stop in Decatur, Illinois. The arresting officer searched
Stanley and found a handgun and a small amount of marijuana in
Stanley’s pocket. An inventory search of Stanley’s car revealed
more marijuana. Combined, the marijuana amounted to 76.5
grams.
The Government charged Stanley with two offenses. Count
One alleged possession of a firearm by a felon, in violation of 18
U.S.C. § 922(g)(1). Count Two alleged possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18 U.S.C. §
924(c)(1)(A).
The Government and Stanley signed a plea agreement: Stanley
agreed to plead guilty to Count Two, and in exchange the
Government agreed to dismiss Count One. The court accepted the
plea agreement and sentenced Stanley to 60 months in prison.
Now, Stanley has filed a Section 2255 motion, also known as a
habeas petition, arguing that the Court should vacate his sentence
because he received ineffective assistance of counsel. (Civ. d/e 1,
4.) Specifically, Stanley argues that his defense attorney coerced
him into pleading guilty even though the indictment against Stanley
was “defective.” (Civ. d/e 4 at 1.)
Page 2 of 17
The indictment’s defect, Stanley says, was that Count Two—
which charged Stanley with possessing a firearm in furtherance of a
drug trafficking crime—identified the wrong drug trafficking crime
of which Stanley was allegedly in furtherance. Count Two identified
the drug trafficking crime at issue as possession with intent to
distribute a controlled substance, citing 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). (Crim. d/e 1.) Those subsections criminalize
possession with intent to distribute 50-99.99 kilograms of
marijuana, whereas Stanley possessed only 76.5 grams of
marijuana. Thus, Stanley says, he was not violating 21 U.S.C. §
841(a)(1) and (b)(1)(C), because he possessed less than 50 kilograms
of marijuana—an offense criminalized by Subsection (b)(1)(D), not
Subsection (b)(1)(C).
Stanley says he mentioned this problem to his attorney, who
“acknowledged the error” but “did nothing to resolve the issue.”
(Civ. d/e 4.) Instead, Stanley says, the attorney “misled [Stanley]
about the error” and “coerced him” into signing the plea agreement
and pleading guilty to Count Two. (Id.)
Stanley argues that, because his attorney failed to raise the
defective-indictment issue, the attorney’s performance “fell below an
Page 3 of 17
objective standard of reasonableness.” (Id.) Stanley says that, had
he received effective assistance of counsel, Count Two, which
carried a mandatory minimum sentence of 60 months, “would’ve
been dismissed”—leaving only Count One, which carried no
mandatory minimum sentence.
II.
Discussion
18 U.S.C. § 2255 allows a person convicted of a federal crime
to vacate, set aside, or correct his sentence. It is an extraordinary
remedy, because a Section 2255 petitioner has already had “an
opportunity for full process.” Almonacid v. United States, 476 F.3d
518, 521 (7th Cir. 2007). Post-conviction relief under Section 2255
is therefore “appropriate only for an error of law that is
jurisdictional, constitutional, or constitutes a fundamental defect
which inherently results in a complete miscarriage of justice.”
Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004)
(quotation omitted). In considering a Section 2255 motion, the
Court reviews evidence and inferences drawn from the evidence in
the light most favorable to the Government. Carnine v. United
States, 974 F.3d 924, 928 (7th Cir. 1992).
Page 4 of 17
The Government has filed a motion to dismiss. The
Government argues that the Court should dismiss Stanley’s Section
2255 motion on either of two grounds: (1) Stanley has waived his
right to collaterally attack his conviction and sentence; or (2)
Stanley has not shown that his attorney’s allegedly deficient
performance prejudiced him.
A.
Stanley’s waiver of his right to collateral attack
A “collateral attack” on a conviction is an attack brought
outside the context of a direct appeal from that conviction. As
Stanley’s plea agreement explained, a collateral attack usually takes
the form of a separate lawsuit initiated by filing a motion under 28
U.S.C. § 2255. Often, as here, a criminal defendant signs a plea
agreement in which he agrees to waive his right to collaterally
attack his conviction. Such waivers are generally enforceable.
Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999).
The Government emphasizes that Stanley “voluntarily agreed”
to the waiver provision in his plea agreement. (Civ. d/e 6 at 3.) The
Government points out that Stanley acknowledged “under oath in
open court” and in the agreement itself that he had read the entire
plea agreement, fully understood it, agreed to it without reservation,
Page 5 of 17
entered into it “voluntarily and of [his] own free will in order to gain
the benefit of the promises made by the United States.” (Id.
(quoting Crim. d/e 11 at ¶ 30).) As the Government observes, such
statements are “entitled to a presumption of verity [and]
correctness.” (Id. (citations omitted).) See also United States v.
Jennison, 237 F.3d 911, 917 (7th Cir. 2001) (courts may consider
defendant’s signature on plea agreement and statements during
plea colloquy as evidence of knowing and voluntary waiver).
Such presumptions, however, do not prevent Stanley from
overcoming his waiver on the ground that his plea agreement was,
in fact, involuntary, or the product of ineffective assistance of
counsel. A defendant’s guilty plea “cannot be ‘knowing and
voluntary’ if it resulted from ineffective assistance of counsel.”
Hurlow v. United States, 726 F.3d 958, 968 (7th Cir. 2013). Thus,
the fact that Stanley averred that he signed his plea agreement
voluntarily does not necessarily preclude him from collaterally
attacking his conviction via a Section 2255 motion.
And indeed, the Government concedes that Stanley’s Section
2255 motion can survive the waiver in his plea agreement. But, the
Government argues, Stanley’s motion can survive the waiver only in
Page 6 of 17
two circumstances: (1) if the waiver was not knowingly or
voluntarily made; or (2) if Stanley’s attorney provided ineffective
assistance “in connection with negotiating the waiver itself.” (Civ.
d/e 6 at 5.) According to the Government, Stanley’s motion does
not survive his waiver because Stanley does not claim “that the
waiver itself was not knowingly and voluntarily made” or that his
attorney “provided ineffective assistance in connection with
negotiating the waiver itself.” (Civ. d/e 6 at 5.)
In truth, however, a Section 2255 petitioner need not allege
that his attorney provided ineffective assistance in connection
specifically with the plea agreement’s waiver provision. Rather, a
collateral review waiver is rendered unenforceable by “an attorney’s
ineffectiveness with regard to the plea agreement as a whole, and
not just the specific waiver provision at issue.” Hurlow v. United
States, 726 F.3d 958, 965 (7th Cir. 2013) (emphasis added). As the
Seventh Circuit put it, a waiver “stands or falls with the plea
bargain of which it is a part.” Id. at 965 (quotation omitted). Thus,
a Section 2255 petitioner “need not have alleged that his counsel
was ineffective in the negotiation of the waiver provision of his plea
agreement specifically.” Id. at 965; see also United States v.
Page 7 of 17
Behrman, 235 F.3d 1049, 1051 (7th Cir. 2000) (claim “that the plea
agreement was involuntary or the result of ineffective assistance of
counsel … concern[s] the validity of the plea agreement” and thus
“would knock out the waiver” if successful); Purham v. United
States, No. 14-3232, 2015 U.S. Dist. LEXIS 1006, *8-9 (C.D. Ill.
Jan. 5, 2015) (Myerscough, J.) (“collateral review waiver does not
prevent a habeas petitioner from being heard on claims that his
plea agreement was the product of ineffective assistance of
counsel”) (quoting Hurlow, 726 F.3d at 965).
Here, Stanley has claimed that he received ineffective
assistance of counsel in connection with his plea agreement. (See
Civ. d/e 4 (“counsel was ineffective for coercing [Stanley] to plead
guilty to a defective indictment”).) The Court may not dismiss
Stanley’s Section 2255 motion simply because he has not claimed
ineffective assistance in connection with the negotiation of the
waiver itself. See Hurlow, 726 F.3d at 965.
However, Stanley’s allegation of ineffective assistance relating
to the plea agreement does not, in and of itself, overcome the plea
agreement’s waiver provision. As the Seventh Circuit has said, “Not
every claim of ineffective assistance of counsel can overcome a
Page 8 of 17
waiver in a plea agreement.” Hurlow, 726 F.3d at 966. In
assessing a Section 2255 motion premised on ineffective assistance,
the Court’s task is to determine whether the petitioner’s claims of
ineffective assistance are “sufficient” to overcome the waiver in his
plea agreement. Hurlow, 726 F.3d at 966. To this end, the Seventh
Circuit has rejected “broad, unsupported assertions” of ineffective
assistance and “garden variety attacks” that merely take the guise
of ineffective assistance claims. Hurlow, 726 F.3d at 966 (quotation
omitted).
The question, then, is whether Stanley’s claim of ineffective
assistance is sufficient to overcome his waiver. The Seventh Circuit
has said that a Section 2255 petitioner “cannot just assert that a
constitutional violation preceded his decision to plead guilty or that
his trial counsel was ineffective for failing to raise the constitutional
claim. Rather, he must allege that he entered the plea agreement
based on advice of counsel that fell below constitutional standards.”
Hurlow, 726 F.3d at 966-67. In other words, the petitioner “must
allege that the plea agreement was the product of ineffective
assistance of counsel … or tainted by ineffective assistance of
counsel.” Hurlow, 726 F.3d at 967 (quotations omitted).
Page 9 of 17
In Hurlow, the petitioner alleged that his counsel “persuaded”
and “cajoled” him into pleading guilty. 726 F.3d at 967. Reversing
the district court’s denial of the petitioner’s Section 2255 motion,
the Seventh Circuit found that the petitioner’s allegations were
“sufficient” to overcome his waiver. Id. The Seventh Circuit noted
that, even though the petitioner had told his counsel about facts
indicating that the detectives who obtained critical evidence against
him had violated the Fourth Amendment in doing so, his counsel
allegedly “refused to listen or investigate further.” Id.
Here, Stanley has alleged that his attorney “was ineffective for
coercing [Stanley] to plead guilty.” (Civ. d/e 4.) Stanley alleges
that, despite his having made his attorney aware of the
defectiveness of the indictment against him, his attorney “did
nothing to resolve the issue,” “misled [Stanley] about the error,” and
“coerced” Stanley into pleading guilty. (Civ. d/e 4.) These claims
constitute an allegation that Stanley’s plea agreement was the
product of ineffective assistance; as such, the claims are sufficient
to overcome the waiver in Stanley’s plea agreement.
B.
Stanley’s claim on the merits
Having found that Stanley did not waive his right to bring this
Page 10 of 17
Section 2255 motion, the Court nevertheless denies the motion on
the merits. See Bridgeman v. United States, 229 F.3d 589, 592 (7th
Cir. 2000) (“But although he did not waive it, Bridgeman’s [Section
2255] claim is patently without merit.”); see also Bruce v. United
States, 256 F.3d 592, 597 (7th Cir. 2001) (“district court need not
grant evidentiary hearing” when briefing and record conclusively
show petitioner not entitled to relief); 28 U.S.C. § 2255(b).
To succeed on a claim of ineffective assistance, a Section 2255
petitioner must show: (1) that his attorney’s performance fell below
an objective standard of reasonableness; and (2) that he suffered
prejudice as a result. Wyatt v. United States, 574 F.3d 455, 457-58
(7th Cir. 2009) (citing Strickland v. Washington, 466 U.S. 668
(1984)). The first prong is known as the “performance” prong, and
the second is known as the “prejudice” prong. Id. Failure to prove
either prong is fatal to a claim of ineffective assistance. Chichakly
v. United States, 926 F.2d 624, 630 (7th Cir. 1991). The Court
need not consider the performance prong if it finds that the
petitioner has not satisfied the prejudice prong. Matheny v.
Anderson, 253 F.3d 1025, 1042 (7th Cir. 2001); Strickland v.
Washington, 466 U.S. 668, 697 (1984) (“If it is easier to dispose of
Page 11 of 17
an ineffectiveness claim on the ground of lack of sufficient prejudice
… that course should be followed.”).
To satisfy the prejudice prong, a petitioner must show a
reasonable probability that, but for his attorney’s errors, the result
would have been different. Gentry v. Sevier, 597 F.3d 838, 851 (7th
Cir. 2010). And a petitioner who pleaded guilty, as Stanley did,
must show a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going
to trial. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009)
(quotation omitted).
Here, there is not a reasonable probability that the result of
Stanley’s prosecution would have been different had Stanley’s
attorney acted differently. Even if Stanley’s attorney had raised the
issue of Count Two’s defect, as Stanley requested, the count would
not likely have been dismissed.
Stanley argues that Count Two would have been dismissed on
the ground that it identified the wrong underlying drug trafficking
crime of which Stanley was allegedly in furtherance while
possessing a firearm. But “[u]nless a defendant was misled and
thereby prejudiced, neither an error in a citation nor a citation’s
Page 12 of 17
omission is a ground to dismiss the indictment or to reverse a
conviction.” Fed. R. Crim. P. 7(c)(2); accord United States v.
Shields, 789 F.3d 733, 742 (7th Cir. 2015). Count Two charged
Stanley with “possess[ing] a firearm in furtherance of a drug
trafficking crime,” which is a violation of 18 U.S.C. § 924(c)(1)(A).
(Crim. d/e 1 at 1-2.) And Stanley does not argue that he did not
possess a firearm in furtherance of a drug trafficking crime.
Rather, he argues that he possessed a firearm in furtherance of a
different drug trafficking crime than the crime cited in Count 2.
Specifically, Stanley possessed a firearm in furtherance of a drug
trafficking crime prohibited under 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(D)—not 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), which
Count Two cited.
It is true that Count Two should have cited 21 U.S.C. §§
841(a)(1) and 841 (b)(1)(D) for the underlying drug trafficking crime
of which Stanley’s alleged furtherance brought him in violation of
18 U.S.C. § 924(c)(1)(A). Stanley possessed only 76.5 grams of
marijuana—less than the amount necessary to fall under 21 U.S.C
§§ 841(a)(1) and 841(b)(1)(C). But there is no indication of prejudice
resulting from this error. Count Two plainly charged Stanley with
Page 13 of 17
“possess[ing] a firearm in furtherance of a drug trafficking crime.”
(Crim. d/e 1 at 1.) Stanley thus had notice that he was being
charged with possessing a firearm while in furtherance of a drug
trafficking crime. There is not a reasonable probability that Stanley
was misled as to the charge against him simply because he
possessed a smaller quantity of marijuana than the amount that
would have triggered the specific subsection cited in Count Two.
The charge against Stanley was possession of a firearm while in
furtherance of a drug trafficking crime, and Count Two stated that
in plain language. Indeed, Count Two cited the correct statute—18
U.S.C. § 924(c)(1)(A), which criminalizes possessing a firearm while
in furtherance of a drug trafficking crime—regardless of which
particular underlying subsection was correct: the statute, 18 U.S.C.
§ 924(c)(1)(A), applies both to the drug trafficking crime cited in
Count Two (21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C)) and to the drug
trafficking crime of which Stanley was in furtherance (21 U.S.C. §§
841(a)(1) and 841(b)(1)(D)).
Thus, as the Government argues, Count Two “adequately
apprised [Stanley] of the charge so that he could have prepared a
proper defense.” (Civ. d/e 6 at 9.) See United States v. Harvey, 484
Page 14 of 17
F.3d 453,457-58 (7th Cir. 2007) (finding defendant “adequately
apprised of the charges against him” despite indictment language
differing slightly from statutory language; noting that “[o]nly a
pointlessly hypertechnical reading of the indictment … would
support [a] claim that it was inadequate”); United States v. Garner,
529 F.2d 962, 966 (6th Cir. 1976) (“the recitation of specific facts
contained within the indictment, alone, is sufficient to adequately
inform the defendant[ ] of the nature of the charges”).
Because there is not a reasonable probability that Stanley was
misled by the charge in Count Two, there is not a reasonable
probability that Count Two would have been dismissed had
Stanley’s attorney raised the issue of the count’s defect. And
because there is not a reasonable probability that Count Two would
have been dismissed, there likewise is not a reasonable probability
that, had Stanley’s attorney acted differently, Stanley would not
have pleaded guilty or would have insisted on going to trial.
In sum, Stanley does not satisfy the prejudice prong required
for the claim of ineffective assistance in his Section 2255 motion to
proceed. The briefing and record conclusively establish that
Stanley did not suffer prejudice from his attorney’s alleged
Page 15 of 17
ineffectiveness, and no evidentiary hearing is warranted.
III.
Conclusion
The Court finds that Stanley has not waived his right to
collaterally challenge his conviction and sentence on the ground
that he received ineffective assistance of counsel in connection with
his plea agreement. For the reasons above, however, the Court
denies Stanley’s Section 2255 motion on the merits. The United
States of America’s Motion to Dismiss Petitioner’s Motion Pursuant
to 28 U.S.C. § 2255 (Civ. d/e 6) is GRANTED. Plaintiff Kristopher
Stanley’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Civ. d/e 1) is
DENIED.
Because Stanley has not made a substantial showing of the
denial of a constitutional right, the Court also denies a certificate of
appealability under Rule 11(a) of the Rules Governing Section 2255
Proceedings. See 28 U.S.C. § 2253(c)(2).
This case is closed.
Page 16 of 17
IT IS SO ORDERED.
ENTER: November 12, 2015
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 17 of 17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?