Neal v. United States of America

Filing 12

OPINION: For the reasons stated, the Government is DIRECTED to file asupplemental response on or before August 2, 2019, advising theCourt as to whether an evidentiary hearing is needed. PetitionersMotion to Amend (Doc. 6 ) is DENIED. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 7/17/2019. (ME, ilcd)

E-FILED

Friday, 19 July, 2019 04:32:38 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MALCOLM J. NEAL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 16-cv-03229

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on Petitioner Malcolm J. Neal’s
Motion to Vacate Sentence Under 28 U.S.C. § 2255 (Doc. 1). In
light of Garza v. Idaho, 139 S. Ct. 738 (2019), the Court finds that,
if Petitioner’s allegations are true, he is entitled to pursue his
appeal. The Government is DIRECTED to file a supplemental
response on or before August 2, 2019, advising the Court as to
whether an evidentiary hearing is needed.
Also before the Court is Petitioner’s Motion to Amend (Doc. 6).
For the reasons explained below, Petitioner’s Motion is DENIED.

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I. BACKGROUND
In May 2015, a federal grand jury charged Petitioner with
numerous drug trafficking offenses and related counts. See United
States v. Neal, United States District Court, Central District of
Illinois, Springfield Division, Case No. 3:15-cr-30022 (hereinafter,
Crim.), Indictment (d/e 1). On August 8, 2015, Petitioner pleaded
guilty pursuant to a written plea agreement to two of the charges:
Conspiracy to Distribute 100 Grams or More of Heroin in violation
of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B) (Count 1), and
Possession of Firearms in Furtherance of a Drug Trafficking Crime
in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 9). Crim., Plea
Agreement (d/e 10); Minute Entry Aug. 8, 2015.
As part of his plea agreement, Petitioner agreed to waive his
right to direct appeal and collateral attack. The plea agreement
stated that “the defendant knowingly and voluntarily waives the
right to appeal any and all issues relating to this plea agreement
and conviction and to the sentence, including any fine or
restitution, within the maximum provided in the statute of
conviction, and the manner in which the sentence, including any
fine or restitution, was determined, on any ground whatever, in
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exchange for the concessions made by the United States in this plea
agreement. The waiver in this paragraph does not apply to a claim
of involuntariness or ineffective assistance of counsel.” Crim., Plea
Agreement at ¶25 (d/e 10).
The United States Probation Office prepared a revised
Presentence Investigation Report. Crim., RPSR (d/e 19). Petitioner
was subject to a statutory mandatory minimum term of
imprisonment of five years and a maximum term of 40 years on
Count 1, and a statutory mandatory minimum term of
imprisonment of five years to a maximum of life on Count 9, to be
served consecutively to Count 1. See 21 U.S.C. § 841(b)(1)(B); 18
U.S.C. § 924(c)(1)(A)(i). The revised PSR concluded that his advisory
sentencing guideline range was 100 to 125 months’ imprisonment
on Count 1, and 60 months’ imprisonment on Count 9. Crim.,
RPSR at ¶108.
At the sentencing hearing on December 18, 2015, the Court
accepted Petitioner’s guilty plea. The Court sentenced Petitioner to
a below guidelines sentence of 80 months’ imprisonment on Count
1, and 60 months’ imprisonment on Count 9, to run consecutively

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to Count 1, for a total imprisonment sentence of 140 months. The
Judgment issued the same day. Crim., Judgment (d/e 24).
On June 1, 2016, Petitioner filed a belated Notice of Appeal.
Crim., Notice of Appeal (d/e 27); United States v. Neal, Case No. 162332 (7th Cir.). Petitioner argued that his untimely appeal should
be allowed because he had instructed his counsel to file a Notice of
Appeal, but his counsel had failed to do so. The Government filed a
response on June 21, 2016, arguing that, while Petitioner may have
a claim of ineffective assistance of counsel regarding his counsel’s
failure to file a notice of appeal, such a claim was properly brought
under 28 U.S.C. § 2255 and did not excuse his untimely notice of
appeal. The Seventh Circuit dismissed his appeal as untimely on
June 27, 2016.
On August 18, 2016, Petitioner filed this Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1), raising
the claim that he received ineffective assistance of counsel when his
counsel failed to file a notice of appeal after being instructed to do
so by Petitioner. Motion at 4-5 (Doc. 1).
The Government filed its response (Doc. 3) on September 19,
2016, and Petitioner filed his reply (Doc. 5) on October 24, 2016.
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Petitioner then filed a Motion to Amend (Doc. 6) on May 1, 2017,
seeking to add claims that his counsel was ineffective for failing to
file a motion to suppress, and that proceedings before the Court
were void because his counsel did not file a notice of appearance in
violation of “Federal Rule Procedure 57.1.” Mot. to Amend at 6-7
(Doc. 6). The Government filed a Response to the Motion to Amend
(Doc. 7) on May 15, 2017, arguing that his additional claims are
untimely. Petitioner filed an untimely reply (Doc. 10) nearly a year
later on April 30, 2018. This Order follows.
II. ANALYSIS
A person convicted of a federal crime may move to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Relief
under § 2555 is an extraordinary remedy because a § 2255
petitioner has already had “an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). “[I]t
is generally proper to raise arguments of ineffective assistance of
counsel for the first time on collateral review in a § 2255 petition
because such claims usually. . . involve evidence outside the

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record.” Galbraith v. United States, 313 F.3d 1001, 1007 (7th Cir.
2002).
The Sixth Amendment guarantees criminal defendants
effective assistance of counsel. Strickland v. Washington, 466 U.S.
668, 684-86 (1984). Under Strickland’s familiar two-part test,
Petitioner must show both that his attorney’s performance was
deficient and that he was prejudiced as a result. Vinyard v. United
States, 804 F.3d 1218, 1225 (7th Cir. 2015). Courts, however,
must “indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 690. A petitioner must also prove that he
has been prejudiced by his counsel’s representation by showing “a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694.
A. In Light of Garza v. Idaho, 139 S. Ct. 738 (2019),
Petitioner May Be Entitled to Pursue his Appeal.
Petitioner’s original Motion alleges that he specifically
instructed his counsel to file a notice of appeal, and his counsel
failed to do so. In its response, the Government, relying on Nunez
v. United States, 546 F.3d 450, 455 (7th Cir. 2008), argued that
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even if Petitioner specifically instructed his counsel to file an
appeal, his counsel’s performance was not defective in light of the
appellate waiver in Petitioner’s plea agreement. However, since
briefing in this case, the Supreme Court, in Garza v. Idaho, 139 S.
Ct. 738 (2019), held that an attorney renders deficient performance
by not filing a notice of appeal in light of their client’s clear request,
even in the face of an appeal waiver. Id. at 747. Garza abrogated
the Seventh Circuit’s decision in Nunez. Moreover, Garza held that
such deficient performance is presumptively prejudicial as long as
the defendant can show that the deficient performance deprived
him “of an appeal that he otherwise would have taken.” Id. (citing
Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029 (2000).
Here, Petitioner alleges that counsel refused to file an appeal
after a clear request and that he would have taken the appeal. If
Petitioner’s allegations are true, then Petitioner is entitled to have
the Court vacate and reenter the judgment, allowing the appeal to
proceed. It would likely be a frivolous appeal, of course, as

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Petitioner indeed waived his right to appeal in his plea agreement,
but it is his right nonetheless.
The Government did not address the factual allegations in its
response. If the Government disputes Petitioner’s allegations, the
Court must have a hearing to determine whether Petitioner’s
allegations are true. However, if the Government does not object,
the Court can vacate and reenter the judgment without a hearing,
and allow the appeal to proceed. See, e.g., United States v.
Sandoval-Lopez, 409 F.3d 1193, 1198-1199 (9th Cir. 2005).
Accordingly, the Government is ordered to file a supplemental
response on or before August 2, 2019, advising the Court whether
an evidentiary hearing will be needed.
B. Petitioner’s Claims in his Motion to Amend are
Untimely.
In his Motion to Amend, Petitioner raises two additional
claims: (1) that his attorney rendered ineffective assistance when he
failed to file a motion to suppress evidence prior to his guilty plea
and (2) that his guilty plea is void because defense counsel did not
properly enter his appearance. However, the Government argues
that the claims are untimely raised. Requests to amend § 2255
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Motions are governed by Fed. R. Civ. P. 15(a). Mayle v. Felix, 545
U.S. 644, 654 (2005). Motions to Amend may be granted “freely . . .
when justice requires.” Id. However, new claims must either
“independently meet the statute of limitations” or “relate back to the
date of the original pleading.” Riney v. United States, No. 15-3783,
2017 WL 3426473, at *1 (7th Cir. Feb. 10, 2017) (citing Mayle, 545
U.S. at 654).
Here, Petitioner’s claims do not relate back to his original
motion. Under Fed. R. Civ. P. 15(c)(1)(B), “an amendment to a
pleading relates back to the date of the original pleading when . . .
the amendment asserts a claim or defense that arose of the
conduct, transaction, or occurrence set out—or attempted to be set
out—in the original pleading.” This rule “relaxes, but does not
obliterate, the statute of limitations; hence relation back depends
on the existence of a common ‘core of operative facts’ uniting the
original and newly asserted claims.” Mayle, 545 U.S. at 659.
Petitioner’s only claim in his original motion was that his attorney
failed to file a Notice of Appeal after Petitioner instructed him to do
so. In his untimely reply, Petitioner claims that all of his claims
arose out of the same facts since they all allege ineffective
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assistance of counsel claims. Reply at 3 (Doc. 10). But the fact
that a claim has the same legal basis does not make it arise out of
the same facts. His new claims regarding his attorney’s failure to
file a notice of appearance, and his attorney’s failure to file a motion
to suppress evidence, are entirely separate grounds with no
common facts.
Further, Petitioner’s claims do not independently fall within
the statute of limitations. A one-year period of limitation applies to
§ 2255 petitions. 28 U.S.C. § 2255(f).

Petitioner’s conviction

became final more than a year before filing his motion to amend
(§ 2255(f)(1)). Petitioner’s conviction became final on January 1,
2019, 14 days after entry of judgment, when the time for filing a
direct appeal expired. See Crim., Judgment (d/e 24) (entered
December 18, 2015). Petitioner’s Motion to Amend his § 2255
Motion, filed in August 2016, was filed beyond one-year from the
date the conviction was final. Moreover, the other three ways to
calculate timeliness do not apply: Petitioner does not allege that any
government action prevented him from making a motion
(§ 2255(f)(2)), that a new right exists (§ 2255(f)(3)), or that he
recently discovered, through the exercise of due diligence, facts
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supporting the ineffective assistance of counsel claim (§ 2255(f)(4)).
His Motion to Amend is, therefore, denied.
Additionally, the Court notes that Petitioner’s claim that his
guilty plea is void because defense counsel did not enter an
appearance in his case could not entitle him to any relief. Petitioner
cites “Federal Rule 57.1” as the basis for his claim. He appears to
be citing a local rule from the Northern District of Illinois. See NDIL
LCrR57.1 (“Each attorney representing a defendant in a criminal
proceeding shall file an appearance. The appearance must be filed
prior to or simultaneously with the filing of any motion, brief or
other document or at the initial court appearance, whichever occurs
first. A copy of the appearance shall be served on the United States
attorney.”). However, the Central District of Illinois does have a
similar rule which provides: “No attorney may appear on behalf of a
criminal defendant unless the attorney is admitted to practice in
this court and has filed a written entry of appearance in the case.”
CDIL-LR Crim. 57.3.
While Petitioner’s attorney did not file a separate written entry
of appearance in the case, the record shows that Petitioner’s
attorney, Assistant Federal Public Defender Douglas Quivey, was
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appointed by the Court to represent Petitioner at his initial
appearance and arraignment on June 2, 2015. See, Crim., June 2,
2015 Minute Entry. Any technical violation of the rule could not
have prejudiced Petitioner in any way, as Mr. Quivey was promptly
added as attorney of record on June 2, 2015, and the Court,
Government, and Petitioner were all aware that Mr. Quivey would
be representing the Petitioner in the case.
IV. CONCLUSION
For the reasons stated, the Government is DIRECTED to file a
supplemental response on or before August 2, 2019, advising the
Court as to whether an evidentiary hearing is needed. Petitioner’s
Motion to Amend (Doc. 6) is DENIED.

ENTER: July 17, 2019
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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