United States of America v. Pearson
Filing
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MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 7/11/2017. Pearson's Motion to Vacate, Set Aside or Correct Sentence 1 is denied. Civil case terminated. Mailed notice(lk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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UNITED STATES OF AMERICA,
Plaintiff,
v.
KENNETH PEARSON
No. 17 CV 2229
Hon. Virginia M. Kendall
MEMORANDUM ORDER AND OPINION
Pursuant to 28 U.S.C. § 2255, Petitioner Kenneth Pearson filed this pro se Motion to
Vacate, Set Aside, or Correct Sentence based on a claim of ineffective assistance of counsel.
(Dkt. 1.) The Court sentenced Pearson below the guideline range. Nevertheless, Pearson now
challenges his sentence more than one year after his conviction became final and attempts to
circumvent his PLRA filing bar by presenting a meritless ineffective assistance of counsel claim.
For the reasons set forth below, Pearson’s Motion is [1] denied.
BACKGROUND
Pearson led a counterfeit check scheme that compromised over 100 bank customers’
accounts and cost financial institutions over $1,000,000. United States v. Pearson, 12 CR 904-1
Cr. Dkt. 525 at 1.1 Between 2010 and 2012, Pearson and his associates stole bank customers’
information and copies of checks they had written. (Id.) They then used this information to
create counterfeit checks that were made out to “runners” who were recruited by Pearson and his
1
The record in Pearson’s underlying criminal case (12 CR 904-1) is cited herein as “Cr. Dkt.” followed by the
document number.
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associates. (Id. at 2.) The runners cashed the checks and divided the proceeds among the
runners, Pearson, and Pearson’s associates. (Id.)
On December 20, 2012, a federal grand jury returned a thirty-three count indictment
charging Pearson with bank fraud and aggravated identity theft. (Cr. Dkt. 14.) On September
29, 2014, Pearson pled guilty to participating in a scheme to defraud financial institutions in
violation of 18 U.S.C. § 1344 (Count Three) and aggravated identity theft in violation of 18
U.S.C. § 1028A(a)(1) (Count Thirty-Three). (Cr. Dkt. 493.)
The guideline sentencing range for Count Three was 97 to 120 months and Count ThirtyThree carried a mandatory minimum sentence of 24 months’ imprisonment. (Cr. Dkt. 684.) On
January 12, 2015, this Court sentenced Pearson to 80 months’ imprisonment for Count Three
(below the guideline range) and the mandatory consecutive 24 months for Count Thirty-Three
and four years of supervised release. (Cr. Dkt. 540.)2 Pearson did not appeal his conviction or
sentence.
On March 22, 2017, Pearson filed this Motion seeking relief from what he alleges is a
sentence in excess of the maximum authorized by law. He reaches this conclusion on the
erroneous basis that “the only way supervised release can be imposed as part of the sentence of
imprisonment…is if it comes out of the maximum imprisonment authorized.” (Dkt. 1 at 4.) He
claims that his lawyer provided inadequate counsel by failing to make this argument at
sentencing. (Id. at 1.) He further claims that despite his filing this motion long after the one year
statute of limitations had expired for this motion, the limitations period did not begin tolling until
he learned of his counsel’s error through due diligence. Accordingly, he argues that his Motion
is not time-barred under § 2255(f)(4). (Id. at 1–2.) For the following reasons, Pearson’s claim is
time-barred and, even if it were timely, his ineffective assistance of counsel claim is meritless.
2
On March 11, 2015, the Court entered an amended sentencing order to correct a clerical error. (Cr. Dkt. 573.)
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STANDARD OF REVIEW
In relevant part, 28 U.S. § 2255(a) provides: “A prisoner in custody under sentence of a
court established by Act of Congress claiming the right to be released upon the ground that the
sentence imposed… was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate, set aside or correct
the sentence.” The statute provides relief to a defendant only in “extraordinary situations, such as
an error of constitutional magnitude or where a fundamental defect has occurred which results in
a complete miscarriage of justice.” Black v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013).
Relief under this statute is rare because it requires the Court to “reopen the criminal process to a
person who has already had full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th
Cir. 2007).
Likewise, §2255 provides relief for Sixth Amendment claims of ineffective
assistance of counsel only when the prisoner can demonstrate that counsel’s performance was so
deficient as to be “objectively unreasonable under prevailing professional norms” and that he
suffered prejudice as a result of counsel’s deficient performance. United States v. Parker, 2016
WL 7034131 (7th Cir. 2016), quoting Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
Accordingly, if it “plainly appears from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.”
Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts.
DISCUSSION
I. Statute of Limitations and § 2255(f)(4)
Pursuant to § 2255(f), § 2255 motions are subject to a one year period of limitations,
which begins to run on the latest of the following:
(1) the date on which the judgment of conviction becomes final;
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(2) the date on which the impediment to making a motion created by governmental action
in violation of the Constitution or laws of the United States is removed, if the movant
was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.
Pearson has not alleged that the government impeded his Motion in any fashion or that the
Supreme Court has recognized a new rule applicable to his situation. Subsections two and three
are thus irrelevant, so the limitations period for purposes of this action either began tolling on
March 11, 2015, the date on which judgment of conviction became final, or at a later date upon
which Pearson’s due diligence could have made him aware of the possibility that he had a claim
for relief under § 2255.
Pearson asserts that he was diligent in pursuing his claim but he is ignorant of the law and
without an attorney to help him decipher complicated sentencing statutes. For tolling to apply,
Pearson must be able to demonstrate more than procedural ignorance of the law. See Johnson v.
Chandler, 224 Fed. App'x 515, 519 (7th Cir.2007) (gathering cases); Arrieta v. Battaglia, 461
F.3d 861, 867 (7th Cir.2006) (“Mistakes of law or ignorance of proper legal procedures are not
extraordinary circumstances warranting invocation of the doctrine of equitable tolling.”).
Pearson does not further develop his tolling argument beyond his assertion of ignorance and the
Court does not find any other appropriate basis.
Moreover, Pearson filed his Motion a significant amount of time beyond the limitations
period. There is no precedent suggesting that tolling for over a year is permissible on account of
ignorance of the law. On the contrary, even periods of less than a year are too long to grant a
petitioner the benefit of tolling. See Montengro v. United States, 248 F.3d 585 (7th Cir. 2001)
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(ten-month wait is too long), overruled on other grounds by Ashley v. United States, 248 F.3d
585, 592 (7th Cir. 2001); Anjulo-Lopez v. United States, 541 F.3d 814, 817 (7th Cir. 2008)
(three-month wait is too long).
Therefore, March 11, 2015, the date on which judgment of conviction became final, is the
date the clock began for purposes of the statute of limitations. Because the petition was filed
over a year later, it is time-barred and the Court need not address the merits of his petition. See
Cooper v. United States, 199 F.3d 898 (7th Cir. 1999) (declining to address the merits of a timebarred § 2255 habeas petition). Most likely recognizing that he has no reason for the delay,
Pearson attempts to excuse the delay by alleging ineffective assistance of counsel. If a
petitioner’s delay was caused by ineffective assistance of counsel, he is not barred from filing his
claim.
II. Ineffective Assistance of Counsel
Pearson claims that his attorney provided ineffective assistance by failing to contest the
Court’s imposition of a term of supervised release in addition to a term of imprisonment. (Dkt. 1
at 7.) Under Pearson’s theory, 18 U.S.C. § 3583(a) only allows courts to impose supervised
release as a part of the term of imprisonment. In other words, because his combined prison and
supervised release term is longer than the maximum authorized term of imprisonment he could
face for his offenses, he claims that the Court must reduce his term of imprisonment by the
number of years of his term of mandatory supervised release. (Id.) According to Pearson, his
attorney provided objectively unreasonable assistance in failing to make this argument at his
sentencing hearing. (Id.) This claim does not comport with the statutory language, Congress’s
intent in passing it, or the relevant case law.
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Under Strickland v. Washington, a defendant’s Sixth Amendment right to counsel is
violated when (1) counsel’s performance was deficient, meaning “counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment”; and (2) counsel’s deficient performance prejudiced the defendant such that but for
the deficiency, there is a reasonable probability that the result of the proceedings would have
been different. 466 U.S. 668, 687 (1984). As to the first prong, the “[C]ourt must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance” and presume a “sound trial strategy.” Id. at 689; see Menzer v. United States, 200
F.3d 1000, 1003 (7th Cir. 2000). A defendant must identify specific acts or omissions by
counsel that constitute ineffective assistance and the Court then considers whether they are
outside the wide range of professionally competent assistance based on the facts of the case. See
Menzer, 200 F.3d at 1003. The second Strickland prong requires the defendant to prove that
there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
Congress passed the Sentencing Reform Act of 1984, which replaced the parole system
with supervised release, a court-monitored period intended to promote rehabilitation, deterrence,
training, protection of the public, and reduction of recidivism. Johnson, 529 U.S. at 59. Unlike
parole, conditions of supervised release are imposed as part of the sentence. United States v.
Siegel, 753 F.3d 705, 707 (7th Cir. 2014). And unlike parole, supervised release does not
operate to shorten the custodial period of a defendant’s sentence. United States v. Kappes, 782
F.3d 828, 836 (7th Cir. 2015).3 The legislative history indicates that Congress passed this bill so
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Of course, a sentencing judge may take into account the length of a prison sentence in calculating the period of
supervised release and vice-versa so as to strike a balance that best serves the interests of “deterrence, rehabilitation,
and protecting the public.” United States v. Downs, 784 F.3d 1180, 1182 (7th Cir. 2015) (quoting Kappes, 782 F.3d
at 848).
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as to reduce the uncertainty associated with imprisonment terms caused by the parole system. S.
Rep. No. 98–225 at 56. Supervised release was meant to eliminate that uncertainty, making it
clear how long a defendant would spend in prison, after which he or she would be subject to the
authorized supervised release periods described in § 3583(b). Id.
Relevant to Pearson’s claim, Section 3583(a) provides that “[t]he Court, in imposing a
sentence to a term of imprisonment for a felony…, may include as a part of the sentence a
requirement that the defendant be placed on a term of supervised release after imprisonment.”
Pearson was convicted of a Class B felony offense (bank fraud) and a Class E felony (aggravated
identity theft), so under § 3583(b), the recommended term of supervised release adds up to not
more than six years. The Court only imposed four years of supervised release. Pearson reads §
3583 to indicate that the Court must reduce his sentence of imprisonment by the four years he
will spend under court monitoring in supervised release. However, the Supreme Court rejected
this argument in United States v. Johnson, 529 U.S. 53 (2000). Under Johnson, supervised
release commences on the date on which a prisoner is released, which indicates that supervised
release is imposed in addition to, not in place of, a term of imprisonment. Supervised release on
the end of prison sentences is appropriate in order to serve entirely distinct goals from those
served by incarceration.
Pearson’s analysis of the case law on the issue of supervised release is misguided. For
example, Pearson cites to United States v. Barlow, where the Fourth Circuit clearly held that
“supervised release unambiguously does not constitute part of the term of incarceration.” 811
F.3d 133, 138 (4th Cir. 2015). Barlow also cites the sentencing guidelines, which provides that
“a term of supervised release does not replace a portion of the sentence of imprisonment, but
rather is an order of supervision in addition to any term of imprisonment imposed by the court.”
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U.S. Sentencing Guidelines Manual ch. 7, pt. A(2)(b) (U.S. Sentencing Comm’n 2015).
Nevertheless, Pearson erroneously believes that Barlow helps him because of its reference to
North Carolina’s treatment of supervised release, where the state legislature includes a period of
post-release supervision as part of the felon’s term of imprisonment. Barlow, 811 F.3d at 138.
But, “only North Carolina law includes [post-release] supervision in the term of imprisonment.”
Id. A federal judge applying federal law, by contrast, may “only impose supervised release in
addition to, and subsequent to, a term of imprisonment.” Id. (citing 18 U.S.C. § 3583(a) (2012)).
This Court follows federal sentencing law, not the North Carolina legislature.
Given that Pearson’s argument lacks any merit, he does not demonstrate his counsel was
deficient in failing to raise it and it follows that there was no prejudice.
CONCLUSION
For the foregoing reasons, Pearson’s Motion [1] is dismissed.
____________________________________
Hon. Virginia M. Kendall
United States District Judge
Date: July 11, 2017
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