Adams v. United States of America

Filing 13

OPINION BY RICHARD MILLS, U.S. District Judge: The Motion under 28 U.S.C. § 2255 of Kevin L. Adams to Vacate, Set Aside or Correct Sentence (d/e 1 ) is DENIED. The Court declines to issue a certificate of appealability pursuant toRule 11 of the Rules Governing Section 2255 Proceedings. The Petitioner's Pro Se Motion for Transcripts of the Evidentiary Hearing (d/e 12 ) is DENIED. SEE WRITTEN OPINION. Entered on 3/24/2016. (MJ, ilcd)

E-FILED

Thursday, 24 March, 2016 01:37:10 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KEVIN L. ADAMS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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NO. 12-3245

OPINION
RICHARD MILLS, U.S. District Judge:
Kevin Adams has filed a Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside or Correct Sentence.
The Court has reviewed the Motion and his Memorandum in
Support, the Government’s Response and the Petitioner’s Reply. The
Court has also considered the testimony and evidence from the evidentiary
hearings conducted on November 18, 2015 and December 2, 2015. The
Petitioner was represented at the evidentiary hearing by Attorneys James
E. Elmore and Mark Kevin Wykoff.

I.
Petitioner Kevin L. Adams entered pleas of guilty to three counts of
the Indictment, which charged possession with the intent to distribute
crack. See United States v. Kevin L. Adams, Case No. 3:10-cr-30086-RMTSH. The Petitioner was sentenced to serve 240 months’ imprisonment on
each of Counts 1, 2 and 3, to run concurrently. In his motion seeking relief
under § 2255, the Petitioner alleges he received ineffective assistance of
counsel during the sentencing phase.
The Petitioner was initially represented by Attorney Monroe
McWard, who was appointed pursuant to the Criminal Justice Act.
Although his pro se motion to terminate appointed counsel was denied, the
Petitioner retained Attorney Paul Sims soon thereafter.

Mr. Sims

represented the Petitioner at all times relevant to this § 2255 motion.
The Petitioner contends that, but for counsel’s deficient performance,
he would have received a lighter sentence. Specifically, the Petitioner
received a 2-point enhancement as a result of an objection to the initial
Presentence Investigation Report (PSR).

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The 2-point enhancement,

pursuant to § 2D1.1(b)(12), was based on the allegation that Petitioner
maintained a premises for the purpose of manufacturing or distributing a
controlled substance. This enhancement was not included in the initial
PSR. It was added after the Petitioner’s counsel filed an objection to
paragraph 16 of the PSR, claiming that the Petitioner did not reside at the
residence where the illicit substances were recovered, but “only stored some
property at the house searched.” See Doc. No. 1, Ex. 2.
The Government also objected to the initial PSR on the basis that the
enhancement was not included in calculating the Petitioner’s guideline
range. Because of the Petitioner’s access to the home and his admission
that he stored property there, the Government believed a 2-point
enhancement was appropriate.
The Petitioner contends that, based on this objection to the PSR,
counsel factually admitted to the Government that Petitioner “maintained
a premises for the purpose of manufacturing or distributing a controlled
substances” pursuant to § 2D1.1(b)(12). Paragraph 31 of the Revised PSR,
dated August 24, 2011, includes the 2-point enhancement for maintaining

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a drug house. This admission was made while counsel was attempting to
challenge a 2-point firearm enhancement. Although the Petitioner had
admitted during his plea colloquy that he kept drugs at the residence, the
2-point enhancement was not initially imposed.
At the Petitioner’s change of plea hearing, counsel also advised that
Petitioner would be challenging the firearm enhancement at sentencing.
The Petitioner’s guideline range was calculated to be 235-293 months.
Prior to the enhancement, as stated in the initial PSR dated August 1,
2011, his guideline range was determined to be 188-235 months. The
Government claimed that if the Petitioner continued to persist in the
“frivolous objection” to the firearm enhancement, he should also lose the
3-level reduction for acceptance of responsibility.
The Government reiterated this position at the beginning of the
sentencing hearing. The Court inquired of counsel as to whether the
Petitioner continued to challenge the firearm enhancement. Counsel stated
that he had discussed the matter with the Petitioner, who adhered to his
objection. The Court inquired directly of the Petitioner, who stated that

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he wished to proceed with the objections.
Ultimately, the Petitioner lost his 3-level reduction for acceptance of
responsibility, resulting in a guideline range of 324-405 months. The 240month sentence, while 84 months below the low end of the applicable
guideline range, was 52 months above the low end of the guideline range
that was initially calculated before counsel challenged the firearm
enhancement. The Petitioner did not appeal.
The Petitioner contends that counsel’s objections fell below the
normal standard of competence expected of a federal criminal practitioner.
Moreover, the Petitioner was significantly prejudiced, given his exposure to
a significantly higher sentencing guideline range.
The Government asserts counsel’s decision was a tactical decision that
does not support an ineffective assistance of counsel claim. From the outset
of the case, the Petitioner alleged he lived on South 15th Street in
Springfield, Illinois, and evidence developed that he maintained a residence
on Catherine Lane where he stored drugs. During the plea colloquy, the
Petitioner admitted to Judge Cudmore that he stored drugs at the Catherine

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Lane home in order to make money.
In his objections to the PSR, counsel stated that other members of his
family stored items at the Catherine Lane residence. At sentencing, counsel
claimed that no evidence connected the Petitioner to the firearms. The
implication was that the guns belonged to someone else who also stored
property at the residence.
II.
The Court heard testimony from four witnesses at the evidentiary
hearing.1 The Petitioner’s mother, Linda Adams, was the first witness.
Neither Ms. Adams nor the Petitioner thought highly of her son’s
appointed attorney, Monroe McWard, and wanted to find another lawyer.
The Petitioner testified he asked Mr. McWard about relevant conduct. He
was concerned that he was being held accountable for higher drug amounts
than were alleged in the Indictment. The Petitioner testified that because
Mr. McWard was an appointed lawyer, he did not think that counsel would
adequately represent his interests.
Although there is no transcript of the evidentiary hearing on file, the
Court has listened to the recording and also relies on its notes.
1

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Linda Adams heard from another son that a friend of his knew a
paralegal in the St. Louis area who had “beat a federal case.” Ms. Adams
met with the paralegal, Michael Grady, at a casino and agreed to hire him
and the attorney with whom he worked. The attorney, Paul Sims, was not
present at the initial meeting. Ms. Adams made a partial payment on the
day of the meeting and a subsequent payment the following month at
counsel’s office.
Attorney Paul Sims testified that although the Petitioner wanted to
plead guilty, he wanted a lawyer who would not “roll over” for the
Government. The Petitioner and his family were looking for someone who
was “willing to fight.” Mr. Sims testified that he advised the Petitioner he
could cooperate with the Government. However, the Petitioner did not
want to cooperate. Mr. Sims testified that he attempted to negotiate with
the Government. Mr. Sims told the Petitioner he was “rolling big dice.”
Mr. Sims believed the Petitioner’s best course was to enter a blind plea and
they could then challenge certain evidence at sentencing.
Linda Adams testified that she dealt primarily with Mr. Grady. The

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Petitioner testified he believed he had retained Mr. Grady, even though Mr.
Grady was not a licensed attorney. Ms. Adams testified Mr. Grady told the
Petitioner that he would take care of everything and Mr. Sims was his
“mouthpiece” in court.

Although the Petitioner faced a mandatory

minimum sentence of ten years, Linda Adams testified Mr. Grady told her
that Petitioner would get between five and ten years because of changes in
the crack cocaine sentencing guidelines. Moreover, Mr. Grady told her not
to worry about relevant conduct.
The Petitioner testified he never met Mr. Grady and only spoke to
him by telephone. Mr. Sims testified he did not have a close relationship
with Mr. Grady. Mr. Grady was a paralegal that he knew.
The Petitioner was advised by Mr. Grady to enter an open plea so
that issues as to relevant conduct would not be waived. The Petitioner
testified Mr. Grady told him that the Government could only prove those
allegations that were in the Indictment. Thus, he believed he could not be
held accountable for additional drug amounts or for a gun enhancement.
Initially, the Petitioner thought those matters would be addressed when he

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entered his open plea. Mr. Grady told the Petitioner he did not think the
enhancements would apply.

Mr. Sims stated they would make some

objections to the PSR. The Petitioner testified he was not concerned about
the firearm enhancement. His primary concern was the weight of the drugs.
The Petitioner testified he felt good about the objections drafted by Mr.
Sims and Mr. Grady.
The Petitioner testified that Mr. Grady told him he felt their
objections were strong and the Petitioner would ultimately receive a
sentence of seven to ten years. The Petitioner testified that he received the
Government’s sentencing commentary, which mentioned that he could lose
credit for acceptance of responsibility if he continued to persist in objecting
to the gun enhancement. Although the Petitioner was concerned, Mr.
Grady told him these were “scare tactics” that the Government used so that
defendants would not contest matters. The Petitioner testified he was
worried but trusted the advice he was receiving. Moreover, Mr. Sims never
expressed any concern about losing credit for acceptance of responsibility.
At the evidentiary hearing, the Petitioner admitted storing drugs at

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the residence on Catherine Lane. The Petitioner denied that the guns were
his. He testified he did not know who owned the guns found in close
proximity to the drugs. The Petitioner testified he never saw the guns at
the residence. The testimony is consistent with what the Defendant said
at the plea hearing. He agreed with Mr. Sims’s statement at the plea
hearing that they would be contesting the guns.
The Petitioner testified that had he known then what he knows now
about losing credit for acceptance of responsibility, he would not have
objected to the gun enhancement at sentencing. He denied owning the
guns.

The Petitioner agreed with Mr. Sims’s initial objection.

The

Petitioner testified that he essentially went along with Mr. Sims’s objections
because he thought Mr. Sims knew better. Mr. Sims testified that all of the
information contained in the objections came from the Petitioner. Mr.
Sims stated he did not believe the Petitioner’s challenges were inconsistent
with acceptance of responsibility.
Paul Sims testified that he told the Petitioner that the Government
would ask that the Petitioner not get credit for acceptance of responsibility

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if he persisted with the objections. However, the Petitioner wanted to go
forward with the objections. Mr. Sims advised the Government via email
that Petitioner was not willing to withdraw the objections.
The Petitioner testified that he continued to agree with counsel’s
tactics at his sentencing hearing. Upon knowing the consequences, the
Petitioner wishes he would have taken responsibility for the items found at
the Catherine Lane residence.
The probation officer testified that after receiving counsel’s objection
to the initial PSR–that Petitioner did not live at the Catherine Lane
residence and merely stored property there–the enhancement was added for
maintaining a premises for manufacturing or distributing drugs. However,
the enhancement would have been added anyway based on the
Government’s objection.
The probation officer stated she believed Mr. Sims’s advocacy was
below the level of most attorneys she had observed. She testified that Mr.
Sims appeared to have difficulty understanding that Petitioner could be
held responsible for a firearm when he had not been charged with a firearm

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offense. It was the probation officer’s belief that Mr. Sims did not totally
understand the basis of the enhancement.
Paul Sims testified he believed that the Petitioner did not deserve a
240-month sentence. However, Mr. Sims would have not done anything
differently. He believed that the Petitioner met his burden in challenging
the gun enhancement. The Petitioner adhered to his position that he
wanted to contest the enhancements.
III.
(A)
The Petitioner’s challenge to the gun enhancement was that no
evidence connected him to the firearms and they must have belonged to
someone else who stored property at the residence. This is true even
though the Petitioner admitted that the drugs were his.
This was not a strong argument because, as the Government noted,
once it met its initial burden, the Petitioner had the burden of producing
evidence that the firearm was not connected to his drug dealing activities.
The application note, § 2D1.1(b)(1), provides that if the Government

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shows by a preponderance of the evidence that a defendant possessed the
firearm, then the defendant must show it was “clearly improbable” that the
gun was connected with the offense. See United States v. Corral, 324 F.3d
866, 872 (7th Cir. 2003).

The Government need not prove actual

possession; proof of constructive possession is sufficient to warrant the
enhancement. See United States v. Thomas, 294 F.3d 899, 906 (7th Cir.
2002). Thus, the defendant must have the power and intention to exercise
control of the firearm in order for the enhancement to apply. See id.
“[G]uns found in close proximity to drug activity are presumptively
connected to that activity.” Corral, 324 F.3d at 873. The enhancement
can apply even if the connection between the guns and drugs is “temporal
in nature.” See id. Because of this presumption, when a gun and drugs are
found at the same residence, therefore, a defendant must meet a high
standard in order for the enhancement not to apply.
The Government alleges the Petitioner’s challenge to the firearm
enhancement was a tactical decision that was not unreasonable.
Additionally, the Government disputes that counsel made this objection

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without discussing it with the Petitioner.
(B)
A petitioner asserting an ineffective assistance of counsel claim must
show that counsel’s performance was objectively deficient and this lack of
competent representation resulted in prejudice. See United States v. Jones,
635 F.3d 909, 915 (7th Cir. 2011) (citing Strickland v. Washington, 466
U.S. 668, 687-96 (1993)). To show prejudice, the petitioner must show
there is a reasonable probability that but for counsel’s mistakes below, the
result of the proceedings would have been different. See id. Because of the
general rule that arguments based on the Sentencing Guidelines must be
raised on direct appeal, “only Sentencing Guidelines errors of constitutional
proportion are considered on collateral review.” See Allen v. United States,
175 F.3d 560, 563 (7th Cir. 1999).
“In the sentencing context, an attorney’s unreasonable failure to
identify and bring to a court’s attention an error in the court’s Guidelines
calculations that results in a longer sentence may constitute ineffective
sentence entitling the defendant to relief.” Jones, 635 F.3d at 916. The

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argument here is that counsel’s actions, or blunders, during the sentencing
phase contributed to a longer advisory guideline range which, the Petitioner
believes, ultimately led to a more lengthy sentence.
The Petitioner contends that counsel’s post-plea admission of the
drug premises enhancement–which was not otherwise sought–resulted in
exposure to a potential sentence that was approximately four years longer.
However, the probation officer testified that the omission of the
enhancement in the initial PSR was an oversight on her part. Moreover,
the Government objected to the initial PSR on the basis that it did not
include an enhancement for maintaining a drug premises.
Even if the Government’s objection was triggered by Mr. Sims’s
objection to the Catherine Lane property as the Petitioner’s residence on
the basis that he “only stored some property at the house,” the Petitioner
had admitted during his plea hearing that he stored drugs at the residence.
It was part of the record and, even if counsel’s admission was foolish, the
Petitioner was not prejudiced.
The objection to the firearm enhancement without the presentation

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of any evidence was destined to fail given that a defendant must show it is
“clearly improbable” that the weapons were connected to the drugs. A bare
denial will not do, as the Court admonished the Petitioner’s counsel in
stating, “[Y]ou put on no evidence whatsoever . . . [o]nly the Government
put on evidence.” Transcript of Sentencing Hearing, at 65. The Court
further stated, “We’ve had no testimony from you, from any witness, or
from the defendant.”

Id.

Eventually, the Petitioner lost credit for

acceptance of responsibility and his guideline range, which was first
calculated at 188-235 months, was determined to be 324-405 months.
Attorney Paul Sims testified the Petitioner wanted to go forward with
the objection.

“Where a defendant, fully informed of the reasonable

options before him, agrees to follow a particular strategy . . . that strategy
cannot later form the basis of a claim of ineffective assistance of counsel.”
United States v. Weaver, 882 F.2d 1128, 1140 (7th Cir. 1989). The
Government contends it is apparent that the Petitioner concurred with
counsel’s strategy.
Even after being warned at the sentencing hearing that he could lose

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credit for acceptance of responsibility if he persisted with objections, the
Petitioner reiterated that he wanted to go forward with the objection to the
gun enhancement. He was aware of the consequences. This is consistent
with the Petitioner’s actions from the beginning of the case. A reasonable
inference from the record is that Petitioner wanted a lawyer other than
Attorney McWard because he wanted someone who would “fight” for him.
The Petitioner’s objection to the firearm enhancement without having
presented any evidence was a poor tactical decision. Based on the legal
standard, the objection was highly unlikely to succeed by simply crossexamining Government witnesses and denying a connection to the guns.
If he had not objected, the Petitioner would not have lost credit for
acceptance of responsibility. The Petitioner’s advisory guideline range
would have remained at 235 to 293 months, instead of 324 to 405 months
once he lost the 3-level reduction.
As stated earlier, Paul Sims testified that he advised the Petitioner he
was “rolling big dice” in challenging the enhancements. There is evidence
in the record that–even at the evidentiary hearing–Mr. Sims did not fully

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appreciate a defendant’s high burden in challenging the sentencing factors.
Obviously, the Court cannot know for certain what advice Mr. Sims gave
the Petitioner. There is little question that the Petitioner should have
withdrawn the objections if he had no evidence to offer.
However, the Court concludes that Petitioner was not prejudiced by
counsel’s poor advice. Although the Petitioner faced a guideline range of
324 to 405 months after his objections, the Petitioner was not prejudiced
by counsel’s advice.
The Court is required to accurately calculate a defendant’s guideline
range. Because the Petitioner had acted in a manner inconsistent with
acceptance of responsibility, the Court determined it was appropriate to
remove the 3-level reduction. Thus, the decision not to withdraw the
objections did lead to a significantly higher guideline range.
The record suggests that Petitioner was dissatisfied with Mr. McWard
and wanted an attorney who would fight for him and not make concessions
to the Government. That is not always the best course. However, the
Court did not hold the Petitioner accountable for any poor advice of

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counsel.
Although a significantly higher guideline range was calculated, the
Petitioner’s sentence of 240 months was seven years below the low end of
the revised guideline range. It was near the low end of what would have
been the advisory guideline range if the Petitioner did not lose credit for
acceptance of responsibility. The Petitioner has not shown that but for any
mistakes by counsel, the result at sentencing would have been different.
This was not an error of constitutional proportion. Accordingly, the Court
concludes that the Petitioner cannot show prejudice and his ineffective
assistance of counsel claim must fail.
IV.
For the foregoing reasons, the Court concludes that the Petitioner’s
ineffective assistance of counsel claim does not warrant relief under § 2255.
An appeal may be taken if the Court issues a certificate of
appealability. See 28 U.S.C. § 2253(c)(1)(A). Because the Petitioner has
not “made a substantial showing of the denial of a constitutional right,” see
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of

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appealability under Rule 11 of the Rules Governing Section 2255
Proceedings.
Ergo, the Motion under 28 U.S.C. § 2255 of Kevin L. Adams to
Vacate, Set Aside or Correct Sentence [d/e 1] is DENIED.
The Court declines to issue a certificate of appealability pursuant to
Rule 11 of the Rules Governing Section 2255 Proceedings.
The Petitioner’s Pro Se Motion for Transcripts of the Evidentiary
Hearing [d/e 12] is DENIED. Because transcripts have not been filed in
this case, the Petitioner may contact Court Reporter Kathy Sullivan to
inquire about obtaining a transcript.
The Clerk will terminate this case.
ENTER: March 24, 2016
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge

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