Gardner v. United States of America

Filing 11

OPINION: The Motion of Petitioner Brandon Gardner to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (d/e 1 ) is DENIED. Because the Petitioner has not made a substantial showing of the denial of a constitutional right, the Court hereby denies the Petitioner a certificate of appealability under Rule 11(a). The Petitioner may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. The Clerk will enter Judgment and terminate this case. (SEE WRITTEN OPINION.) Entered by Judge Richard Mills on 10/8/2019. (GL, ilcd)

E-FILED

Wednesday, 09 October, 2019 08:51:13 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

BRANDON GARDNER,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

Case No. 16-3184

OPINION
RICHARD MILLS, United States District Judge:
Pending is the Motion of Petitioner Brandon Gardner under 28 U.S.C. §
2255 to Vacate, Set Aside or Correct Sentence.
I.
Following a guilty plea to a single count of possession of a firearm by a
felon, Brandon Gardner was sentenced to 188 months imprisonment, followed by
five years of supervised release, in criminal case number 3:15-cr-30017. The
Petitioner was sentenced under the Armed Career Criminal Act (“ACCA”) and
subject to a 180-month mandatory minimum.
The sentence imposed was pursuant to a plea agreement under Federal Rule
of Criminal Procedure 15(c)(1)(A) and (C). The plea agreement included an
appellate waiver and collateral attack waiver except in limited circumstances.
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The Petitioner did not file a direct appeal. On June 24, 2016, the Petitioner
filed the instant § 2255 motion, wherein he claims that aggravated assault no
longer qualifies as a predicate offense under the ACCA and that trial counsel was
ineffective for pleading the Defendant to a 188-month sentence and failing to
challenge his qualification for sentencing under the ACCA. The Court directed the
Government to respond to the Petitioner’s motion.

Subsequently, the Court

directed the Petitioner’s trial counsel, Aaron Calvert, to submit an affidavit
answering the Petitioner’s § 2255 motion.
The Petitioner was granted an extension to file a reply but no reply was filed.
II.
In Case Number 15-30017, the Petitioner’s Presentence Investigation Report
provided that he qualified for the 180-month mandatory minimum based on a 2008
conviction for manufacture/delivery of a controlled substance; a 2008 conviction
for aggravated robbery and a 2012 conviction for aggravated assault.

The

Petitioner claims the aggravated assault conviction no longer qualifies as a violent
felony.

He does not challenge his convictions for manufacture/delivery of a

controlled substance or aggravated robbery. The Petitioner contends that Attorney
Calvert was ineffective in his representation because he unreasonably failed to
challenge the Petitioner’s status under the ACCA at sentencing, thereby exposing
him to the mandatory minimum.
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Because the Petitioner’s claim involves allegations of ineffective assistance
of counsel in negotiating the plea, the waivers do not preclude him from filing the
§ 2255 motion. See Hurlow v. United States, 726 F.3d 958, 965 (7th Cir. 2013). A
petitioner alleging ineffective assistance of counsel in negotiating a plea agreement
must show (1) that counsel’s performance was deficient; and (2) that petitioner was
prejudiced to such an extent that, but for counsel’s errors, there is a reasonable
probability that the outcome would have been different. See Gaylord v. United
States, 829 F.3d 500, 506 (7th Cir. 2016). “In other words, a defendant must
demonstrate a reasonable probability that the outcome of the plea process would
have been different with competent advice.”

Id. (internal quotation marks

omitted).
Because the Petitioner asserted ineffective assistance of counsel, the Court
found that he had waived attorney-client privilege and Attorney Calvert filed an
affidavit concerning his communications with the Petitioner during the change of
plea and plea negotiations and also with respect to the PSR and any objections to
be made. Attorney Calvert’s affidavit is attached to the Government’s response.
The Petitioner alleges Attorney Calvert’s performance was deficient because
he failed to challenge the inclusion of his conviction for aggravated assault in
determining he was subject to the 15-year mandatory minimum. If that conviction
had not been included, the Petitioner claims he would have been subject to a 103

year maximum sentence. The Petitioner asserts that Attorney Calvert failed to
advise him of challenging his aggravated assault conviction under Johnson v.
United States, 135 S. Ct. 2551 (2015).

He contends that if he had been aware of

the Johnson decision, the Petitioner would have taken his case to trial based on the
fact he faced no more than a 10-year minimum if convicted.
In his affidavit, Attorney Calvert denies each of the Petitioner’s claims.
Attorney Calvert states that (1) he became aware of Johnson during his
representation of Petitioner; (2) he specifically researched whether the Petitioner’s
conviction for aggravated assault qualified as a crime of violence under the ACCA;
(3) he met with the Petitioner to discuss the impact of Johnson on his case and
provided the Petitioner with a copy of the Johnson decision to review; (4) based on
his research, he believed the Petitioner’s conviction qualified as a crime of
violence; and (5) as part of negotiations with the Government, he convinced the
United States to forego an escape charge against the Defendant.
Also attached to the Government’s response is a copy of a letter dated March
4, 2016, that Attorney Calvert initially sent to the Probation Office wherein he
challenged the Petitioner’s status under the ACCA.

Subsequently, Attorney

Calvert withdrew his objection to the Petitioner’s ACCA status. However, the
letter shows that counsel actively researched whether the Petitioner’s aggravated

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assault conviction qualified as a conviction for a crime of violence after the
Johnson decision.
Because Attorney Calvert initially objected to the PSR when the probation
officer determined that Petitioner’s conviction for aggravated assault qualified as a
crime of violence under the ACCA, the Court concludes that he was aware of the
potential issues raised by Johnson and researched the impact of Johnson on the
Petitioner’s case. Attorney Calvert states that he sent a copy of Johnson to the
Petitioner and discussed the issue with the Petitioner on numerous occasions.
Eventually, Attorney Calvert came to believe that Petitioner’s conviction qualified
as a crime of violence and did not fall under the residual clause. Attorney Calvert
also made a strategic decision in the hopes of obtaining a sentence as low as
possible. He states that based on these efforts, the Government agreed not to
pursue potential escape charges against the Petitioner.
Based on these representations and supporting documentation, the Court
finds it is extremely unlikely that Attorney Calvert failed to discuss the issue with
the Petitioner. The Court further notes at the time of the Petitioner’s case, there
was a great deal of uncertainty as to what qualifies as a crime of violence under the
ACCA. Accordingly, the Court concludes that Attorney Calvert’s performance
was not deficient, or objectively unreasonable. He is thus unable to establish the
first prong of ineffective assistance of counsel. Because the Petitioner’s § 2255
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motion fails on the first prong, the Court need not consider whether the Petitioner
was prejudiced.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings,
the Court must issue or deny a certificate of appealability. Upon reviewing the
entire record, the Court concludes that the Petitioner has not made a substantial
showing of the denial of a constitutional right as required under 28 U.S.C. §
2253(c)(2). Accordingly, the Court will deny a certificate of appealability.
Ergo, the Motion of Petitioner Brandon Gardner to Vacate, Set Aside or
Correct Sentence under 28 U.S.C. § 2255 [d/e 1] is DENIED.
Because the Petitioner has not made a substantial showing of the denial of a
constitutional right, the Court hereby denies the Petitioner a certificate of
appealability under Rule 11(a).
The Petitioner may seek a certificate from the court of appeals under Federal
Rule of Appellate Procedure 22.
The Clerk will enter Judgment and terminate this case.
ENTER: October 8, 2019
FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge

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