Freeman v. United States of America
Filing
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OPINION: 1 Motion to Vacate, Set Aside or Correct Sentence (2255) is DENIED. The court declined to issue a certificate of appealability under Rule 11 of the Rules Governing Section 2255 Proceedings. Civil Case Terminated. SEE WRITTEN OPINION. Entered by Judge Richard Mills on 02/02/17. (SKN, ilcd)
E-FILED
Thursday, 02 February, 2017 11:05:14 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
TYRON D. FREEMAN
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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NO. 13-3371
OPINION
RICHARD MILLS, U.S. District Judge:
Petitioner Tyron D. Freeman has filed a Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct his Sentence [d/e 1]. As directed, the
United States filed a Response to the Petitioner’s Motion [d/e 4]. The
Petitioner has also filed a Reply [d/e 9]. The Court has reviewed the filings
and record and concludes that an evidentiary hearing pursuant to Rule 8
of the Rules Governing Section 2255 Proceedings is not warranted.
I. BACKGROUND
The record in United States v. Tyron D. Freeman, Case Number 3:09cr-30033-RM, provides that on July 28, 2008, the Petitioner was arrested
and found to have over an ounce of crack cocaine concealed between his
buttocks. In April 2009, a grand jury indicted the Petitioner for possession
with the intent to distribute the drugs. Attorney R. John Alvarez was
initially appointed to represent the Petitioner. After the Court granted Mr.
Alvarez’s motion to withdraw, attorney James E. Elmore was appointed on
November 6, 2009 to represent the Petitioner.
On August 3, 2010, the Petitioner moved to suppress the evidence
against him. Mr. Elmore represented the Petitioner at the hearing on the
motion. At the request of the Petitioner, Mr. Elmore moved to withdraw
as counsel and was permitted to do so on November 16, 2010. The same
day, attorney J. Randall Cox was appointed to represent the Petitioner. On
January 12, 2011, the Petitioner’s motion to suppress was denied.
On March 2, 2011, following a two-day jury trial, the Petitioner was
convicted of possession with the intent to distribute at least 28 grams of
crack cocaine. At the sentencing hearing on July 10, 2011, the Petitioner
was found to qualify as a career offender and was sentenced to 360 months.
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The Petitioner appealed his conviction and sentence. The Mandate
of the Seventh Circuit affirming the judgment was issued on September 13,
2012.
In his § 2255 motion, the Petitioner raises a number of ineffective
assistance of counsel claims which relate to each of his attorneys. The
Petitioner’s § 2255 motion also includes two grounds which relate to his
sentence.
II. DISCUSSION
A. Ineffective assistance of counsel claims
(1)
The Petitioner first alleges a number of ineffective assistance of
counsel claims. He asserts each of his three attorneys rendered ineffective
assistance of counsel. 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)). There is a strong
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presumption that counsel’s conduct constitutes reasonable professional
assistance. See Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009)
(citing Strickland, 466 U.S. at 689). “He must establish the specific acts
or omissions of counsel that he believes constituted ineffective assistance;
we then determine whether such acts or omissions fall outside the wide
range of professionally competent assistance.” Id. 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 Jones, 635 F.3d at 915.
The Petitioner alleges Mr. Alvarez “failed to investigate in preparation
of trial” and/or did not file motions to suppress evidence and mis-advised
the Petitioner during plea negotiations. The Petitioner did not suffer
prejudice due to Mr. Alvarez not filing a motion to suppress because such
a motion was later filed the Petitioner and adopted by subsequent counsel.
In his initial motion, the Petitioner does not say how counsel
“misadvised” him.
In his Reply, the Petitioner claims he wanted to
negotiate a favorable plea with the Government. The Petitioner contends
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Mr. Alvarez impeded this process by failing to conduct an adequate
investigation. Moreover, Mr. Alvarez did not provide the Petitioner with
critical information that would have enabled him to make an informed
decision about entering a plea or proceeding to trial.
The Petitioner’s claims are inconsistent with the record. The record
shows that after discussing the matter with counsel, the Petitioner initially
entered into a plea agreement with the Government. See Doc. No. 8. A
change of plea hearing was set. Subsequently, the Petitioner contacted
counsel and “advise[d] that he desired an additional opportunity to review
the Government’s disclosure in the above matter prior to changing and
entering a plea in the above matter.” See Doc. No. 10, at 1.
In a request to withdraw his change of plea request, counsel states
that he met with the Petitioner on October 9, 2009.
The Petitioner
reviewed in detail the Government’s disclosure and discussed the matter
with Mr. Alvarez, who provided his opinion with respect to whether to
proceed to trial or continue with his apparent decision to change his plea.
The motion states that “despite the advice of his attorney, at the conclusion
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of the aforesaid conference, the Defendant advised counsel that he had
changed his position and had decided to proceed to trial and did demand
that counsel commence preparation for the same.” See Doc. No. 11, at 2.
On October 22, 2009, the Petitioner sent a letter to the Court
complaining about counsel’s performance. The Petitioner complained that
counsel had not conducted an adequate investigation and was using “scare
tactics” to persuade him to plead guilty. The Petitioner asked for the
appointment of another attorney.
In a response, Mr. Alvarez states that Petitioner has exhibited
selective memory. See Doc. No. 14. Mr. Alvarez further claims he has
provided the Petitioner with relevant materials and has advised him
regarding the sentencing guidelines, potential defenses, a potential motion
to dismiss and quash arrest, the issue of proceeding to trial or pleading
guilty, the issue of cooperation, the Petitioner’s exposure to being treated
as a career offender and related issues. Mr. Alvarez states that he has never
attempted to convince the Petitioner to plead guilty to the offense as
charged. In advising the Petitioner regarding whether to plead guilty or
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proceed to trial, after reviewing the record, Mr. Alvarez provided the
Petitioner with a recommendation. However, he told the Petitioner it is his
case and his life and his decision to make. Mr. Alvarez states that the
record demonstrates that “defendant has waffled in making a decision as to
entering into a plea agreement or proceeding to trial.” However, Mr.
Alvarez was prepared to file the requested motion to suppress and prepare
for trial based on the Petitioner’s stated position.
The docket report in the criminal case demonstrates that Petitioner
was a difficult client who changed his mind frequently. Although the
parties negotiated a plea agreement, the Petitioner elected to proceed to
trial. The plea agreement may not have been as favorable as the Petitioner
had hoped.
The Petitioner might not have liked counsel’s advice.
However, the Petitioner has made no showing that counsel’s performance
was objectively unreasonable and he has not shown prejudice. Accordingly,
the ineffective assistance claims as to Mr. Alvarez have no merit.
(2)
Regarding Mr. Elmore, the Petitioner makes similar allegations in his
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§ 2255 motion. Specifically, Mr. Elmore “misadvised” the Petitioner during
plea negotiations that he did not face any sentencing enhancements.
Additionally, the Petitioner claims that counsel failed to investigate in
preparation of the suppression hearing and in cross-examination of one of
the police officers.
The Petitioner’s bare allegations about receiving poor advice are
insufficient. Moreover, the record demonstrates that Mr. Elmore was
thoroughly prepared at the suppression hearing.
In any effort, the
Petitioner cannot demonstrate prejudice in connection with the motion to
suppress because he is unable to show that he should have prevailed. See
United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005) (“Where
a claim of ineffective assistance of counsel is based on counsel’s failure to
file a motion to suppress, the prejudice prong of Strickland requires that the
defendant prove that the motion would have been granted.”). The Court
and the United States Court of Appeals for the Seventh Circuit rejected the
Petitioner’s motion to suppress. The Petitioner presents no evidence that
ineffective assistance of counsel contributed to those decisions.
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(3)
The Petitioner also alleges ineffective assistance relating to Mr. Cox’s
representation, claiming that Mr. Cox advised the Petitioner he was facing
only five years under the Fair Sentencing Act. The Petitioner also contends
Mr. Cox did not adequately investigate in preparation of trial and should
have requested a voice analysis of the audio tape.
The Petitioner also asserts that, at the close of the Government’s case,
he asked Mr. Cox to file a motion under Rule 29 for a judgment of
acquittal. The Petitioner states Mr. Cox told him such a motion was
unnecessary because the Petitioner had filed a pro se motion. As the
Government notes, however, the Petitioner did file such a motion which
was denied.
In his reply, the Petitioner states that he based his decision to go to
trial in part on Mr. Cox’s representation that he could impeach a police
officer’s testimony due to inconsistencies in her previous accounts. The
Petitioner claims he also relied on Mr. Cox’s statement that under the Fair
Sentencing Act, the minimum sentence the Petitioner could receive was five
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years and the maximum sentence was 40 years imprisonment.
The
Petitioner acknowledges that counsel attempted to impeach the officer.
The Petitioner is not entitled to habeas relief simply because counsel’s
“cross-examination was not as successful as he stated it would be.” See
Doc. No. 9, at 22. The evidence of the Petitioner’s guilt was overwhelming
and he has shown no prejudice from any tactical decisions of counsel.
Because the Petitioner was also sentenced within the range that counsel
predicted, he cannot show prejudice from any error.
Although the Petitioner is critical of counsel’s investigation and
advice, the Petitioner has failed to show that there is a reasonable
probability the result of the proceedings would have been different but for
any mistakes.
B. Fair Sentencing Act claim
The Petitioner next alleges that the Fair Sentencing Act (“FSA”)
should have applied to his case. As the Government notes, prior to the
enactment of the FSA, a defendant such as the Petitioner with a prior
felony drug conviction faced a statutory minimum sentence of ten years if
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he possessed it with the intent to distribute five or more grams of crack
cocaine. After the FSA, a defendant must possess more than 28 grams of
crack cocaine to have the same statutory mandatory minimum of ten years.
At sentencing, the Court applied the then-controlling Seventh Circuit
precedent of United States v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011),
in holding that the FSA did not apply. The Petitioner is correct that the
FSA was applicable to his case because he was sentenced after August 3,
2010. See Dorsey v. United States, 567 U.S. 260, 132 S. Ct. 2321, 233536 (2012). However, this provides no relief under § 2255 because the
Petitioner would have faced the same penalties if the Court had applied the
FSA at sentencing.
Because of the uncertainty at trial regarding the applicability of the
FSA, the Government requested that the jury be asked whether they found
“beyond a reasonable doubt that [the offense involved] 28 grams or more.”
The Defense agreed that was an appropriate request. The jury found
beyond a reasonable doubt that the offense involved at least 28 grams of
crack cocaine. Accordingly, the Petitioner faced the same statutory penalty
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range (mandatory minimum of ten years and up to life) regardless of
whether or not the FSA applied.
Because the Petitioner qualified as a career offender, moreover, the
application of the FSA did not affect the advisory guideline range. The
statutory maximum remained life under both the pre-FSA and post-FSA
sentencing regimes. Based on the career offender guideline, the offense
level was 37, which resulted in an advisory guideline range of 360 months
to life. This would have been the same advisory range if the Court had held
that the FSA applied to the Petitioner’s case. Accordingly, the Petitioner
is entitled to no habeas relief pursuant to Dorsey or the FSA.
C. Alleyne v. United States claim
In Alleyne v. United States,
U.S.
, 133 S. Ct. 2151 (2013), the
Supreme Court held “[a]ny fact that, by law, increases the penalty for a
crime is an ‘element’ that must be submitted to the jury and found beyond
a reasonable doubt.” 133 S. Ct. at 2155. The Petitioner states that the
notice of prior conviction and application of the career offender guideline
were based on impermissible judiciary fact-finding.
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He alleges such
enhancements must be determined by a jury or admitted by the defendant.
To increase the statutory minimum sentence under 21 U.S.C. § 841,
the amount of drugs must be submitted to a jury and found beyond a
reasonable doubt in order to comply with Alleyne. In this case, the issue
of the drug weight was submitted to a jury and was found to be at least 28
grams of crack cocaine. This step complied with the holding in Alleyne.
The decision in Alleyne did not alter the longstanding rule that the
fact of a prior conviction need not be proved to a jury beyond a reasonable
doubt. See Alleyne, 133 S. Ct. at 2160; Almendarez-Torres v. United
States, 523 U.S. 224, 239 (1998); Davis v. United States, 817 F.3d 319,
326 (7th Cir. 2016).
Additionally, the fact-finding necessary for
application of the career offender guideline need not be submitted to a jury.
See Goodwin v. United States, 600 F. App’x 483, 484 (7th Cir. 2015).
The Petitioner is entitled to no habeas relief on this basis.
III. CONCLUSION
For the foregoing reasons, the Court concludes that the Petitioner’s
claims do not warrant relief under § 2255.
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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
appealability under Rule 11 of the Rules Governing Section 2255
Proceedings.
Ergo, the Motion under 28 U.S.C. § 2255 of Tyron D. Freeman 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 Clerk will terminate this case.
ENTER: February 2, 2017
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge
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