United States of America v. Peterson

Filing 12

MEMORANDUM Opinion and Order: For the reasons stated in the accompanying Memorandum Opinion and Order, Petitioner's Motion to Vacate, Set Aside or Correct Sentence 1 is denied. See Order for further details. Signed by the Honorable James B. Zagel on 3/11/2016. Mailed notice(ep, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
OLLIE PETERSON
No. 14 cv 6010
(11 cr 517)
Judge James B. Zagel

v.
UNITED STATES OF AMERICA

MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Ollie Peterson’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence. For the following reasons, Petitioner’s Motion is denied.
I. BACKGROUND
In January 2012, Petitioner Ollie Peterson (“Peterson”) pleaded guilty to one count of
bank robbery in violation of 18 U.S.C. § 2113(a). Peterson’s lawyer argued that he did not use
actual weapons when committing the offense and that although his motive was to repay a drug
debt, he was actively seeking treatment for substance abuse. At the time of the sentencing,
Peterson was determined to be a career offender under USSG 4B1.1 in light of his seven prior
convictions of aggravated robbery. On May 25, 2012, I sentenced Peterson to 168 months in
prison, due in part to his categorization as a career offender and the absence of mitigating factors
in his upbringing and home life. The 7th Circuit affirmed this sentence on October 17, 2013.
Before me now is Peterson’s motion to vacate the sentence pursuant to 28 U.S.C. § 2255.
II. LEGAL STANDARD
Relief under 28 U.S.C. § 2255 “is available only in extraordinary situations, such as an
error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred,”
resulting in “a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878-79
(7th Cir. 2013). Generally, before a court may consider a § 2255 petition, the claims must have

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been raised and exhausted on direct appeal, Massaro v. United States, 538 U.S. 500, 504 (2003),
except that a petitioner may raise an ineffective assistance of counsel claim under § 2255
regardless of whether or not the petitioner could have raised the claim on direct appeal. Id. A
complaint drafted by a pro se litigant, no matter how unartfully pleaded, is held to less stringent
standards than formal pleadings drafted by counsel. Gutierrez v. Peters, 111 F.3d 1364, 1369
(7th. Cir. 1997) (quoting Hughes v. Rowe, 449 U.S. 5, 9 (1980)).
Peterson’s claim of ineffective assistance requires him to show 1) that counsel was
deficient and 2) that this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687
(1984). The deficiency prong requires that the petitioner demonstrate that counsel’s performance
fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. The prejudice
prong requires a showing that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 694. In assessing this claim, the court is highly
deferential to counsel and observes “a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689. A failure to
establish either deficient performance or prejudice dooms the claim, Gant v. United States, 627
F.3d 677, 682 (7th Cir. 2010) (citing Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996)),
and if the petitioner is unable to make a sufficient showing on one of the Strickland prongs, the
court need not consider the other. Strickland, 466 U.S. at 697; see Atkins v. Zenk, 667 F.3d 939,
946 (7th Cir. 2012).
III. DISCUSSION
As a preliminary matter, I am not holding an evidentiary hearing on this issue, as the
record contains the necessary information I need to make my decision. Additionally, I am
denying Petitioner’s request for appointment of counsel. As Petitioner concedes, there is no

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constitutional right to appointed counsel in a § 2255 proceeding, although it is permissible under
18 U.S.C. § 3006(a)(2) if in the interests of justice so require. Here, Petitioner argues that he
lacks legal expertise and resources to fully develop his arguments and that judicial efficiency
would be served by appointing him a lawyer. While I am cognizant of Peterson’s legal
inexperience and will consider his arguments with that in mind, this is not a case where justice
requires the appointment of counsel. In fact, the briefs Peterson has presented are clear, coherent,
and sufficiently thorough to allow me to rule on this issue.
Lastly, I am denying Peterson’s request for a certificate of appealability and his request
to amend his petition. I consider the ineffective assistance of counsel claims below.
A. Ineffective Assistance of Trial Counsel
Peterson argues that his trial attorney’s performance was constitutionally deficient
during sentencing. First, he alleges that his attorney, Daniel J. Hesler (“Hesler”) failed to make a
“sophisticated argument for a downward departure” of his sentence under USSG 4A1.3. That
section says in part: “If reliable information indicates that the defendant’s criminal history
category substantially over-represents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes, a downward departure may be
warranted.” Second, Peterson contends that Hesler failed to meaningfully make the argument
that because Peterson’s prior convictions for aggravated robbery were non-violent (although not
without the threat of force), that should disqualify Peterson from being considered a career
offender.
The record shows that Hesler did ask for “as lenient a sentence as is possible,” while
acknowledging that the seriousness of the offense and Peterson’s criminal history precluded a
low sentence. Nevertheless, Hesler argued at length that Peterson was deserving of a downward

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departure, for reasons including that “[a]s crimes of violence go . . . this is at the very bottom of
the spectrum . . . [H]e did the absolute minimum he could to get money.” Peterson acknowledges
that these arguments were made, but believes Hesler was constitutionally deficient in failing to
attach more weight to the fact that Peterson was never violent, nor did he ever use a weapon in
the instant offense or prior ones. Furthermore, Peterson seems to regard the fact that Hesler’s
arguments did not produce the downward departure he would have liked to be evidence that
Hesler was ineffective.
When evaluating an ineffective assistance of counsel claim, there is a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984) (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)). A petitioner’s dissatisfaction with his counsel’s strategy, performance,
or the outcome of the case is not sufficient to deem the representation constitutionally deficient;
indeed, competent professionals may reasonably disagree on the litigation strategies, just as they
may have sound reasons for failing to raise or emphasize certain points. The test laid out in
Strickland is whether counsel’s performance fell below an “objective standard of
reasonableness.” Id. at 689.
Here, Hesler did raise the arguments that Peterson seeks to emphasize now. The fact
that he did not explicitly phrase his argument as a request for a downward departure does not
mean that the argument was not effectively made. Additionally, Hesler’s decision to incorporate
other arguments about Peterson’s character and family history, rather than focusing primarily or
exclusively on his history of non-violence, falls well within the range of objective
reasonableness. Without speculating as to Hesler’s state of mind or legal strategy, it is worth
noting that Illinois defines aggravated robbery as a robbery where the offender “indicat[es]

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verbally or by his or her actions” that he or she is armed, even if “it is later determined that he or
she had no . . . weapon.” 720 ILCS 5/18/-5. Peterson did plead guilty to an offense—aggravated
robbery—that is designated as a crime of violence under Illinois law, 20 ILCS 301/1-10, even
when the offender is, in reality, unarmed. Therefore, while Peterson contends that he should not
qualify as a career offender because his convictions did not involve actual violence, it is not
objectively unreasonable for an attorney to decline to make this argument.
For the foregoing reasons, I find that Peterson’s ineffective assistance of counsel
claims fail as to Hesler’s presentation at the sentencing. Because Peterson has not met the
deficiency prong of the Strickland test, I need not proceed to the prejudice prong.
B. Ineffective Assistance of Appellate Counsel
Peterson also raises an ineffective assistance claim against his appellate counsel. For
this claim, he must show that counsel 1) “failed to raise an obvious issue that is stronger than the
other claims raised” and 2) “prejudice flowed from that failure.” Johnson v. Thurmer, 624 F.3d
786, 793 (7th Cir. 2010) (citing Martin v. Evans, 384 F.3d 848, 851 (7th Cir. 2004)). Appellate
counsel “is not required to raise every non-frivolous issue on appeal.” Makiel v. Butler, 782 F.3d
882, 898 (7th Cir. 2015) (citing Brown v. Finnan, 598 F.3d 416, 425 (7th Cir. 2010)).
Peterson’s argument is twofold. First, he alleges that his lawyer wrongly neglected to
bring up the fact that this Court remarked that Peterson’s stable background could be either an
aggravating or mitigating factor, which Peterson considers grounds for an appeal. Second, he
alleges that this Court impermissibly considered his age when determining his sentence,
specifically by noting that “I think he’s capable of leading a decent, law abiding life if he stays
away from drugs, and I don’t think he will reach the ability to do that until he is significantly
older than he is today. Indeed, the only people I have ever seen who have escaped patterns of life

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that are similar to this defendant’s are people who are in advanced to middle-aged before they’re
finally released from prison.”
With regards to the appellate lawyer’s failure to raise an ineffective assistance claim on
appeal, Peterson has not shown a deficiency, which he must do to meet the first prong of the
Strickland test. In fact, it is often more prudent to litigate such arguments on a habeas motion,
where the record has been more fully developed, rather than raising them during direct appeal.
See, e.g., Massaro v. United States, 538 U.S. 500, 504 (2003); Vinyard v. United States, 804 F.3d
1218, 1227 (7th Cir. 2015); United States v. Bryant, 754 F.3d 443, 444 (7th Cir. 2014) (stating
ineffective assistance claims “usually as a matter of prudence should not” be raised on direct
appeal). Thus, Peterson’s lawyer did not fail to raise an obvious, strong issue in this regard, as
the Seventh Circuit has urged attorneys to do exactly what Peterson’s attorney did—save
ineffective assistance claims for habeas appeals.
Finally, it is permitted under § 3553(a)(2)(C) to consider an offender’s age when
contemplating the risks of recidivism as a factor in sentencing. See, e.g., United States v.
Johnson, 685 F.3d 660 (7th Cir. 2012). Nevertheless, I believe Peterson is entitled to a further
explanation of my meaning when I referenced his age at the sentencing hearing. A hearing to
address this point will be scheduled shortly, at which Peterson may appear by video conference.
IV. CONCLUSION
For the foregoing reasons, Petitioner’s Motion is denied.
ENTER:

James B. Zagel
United States District Judge
DATE: March 11, 2016
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