Bailey v. United States of America

Filing 3

ORDER DIRECTING the Government to file a response to petitioners motionon or before June 4, 2012. The Government shall, as part of its response, attach all relevant portions of the record. Signed by Chief Judge David R. Herndon on 5/3/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

L.A. BAILEY, #08581-025,
Petitioner/Defendant,
CIVIL NO. 11-cv-843-DRH
vs.
CRIMINAL NO. 10-cr-30005-DRH
UNITED STATES of AMERICA,
Respondent/Plaintiff.

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
This matter is before the Court on petitioner’s motion to vacate, set aside or
correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1).

On May 28, 2010,

Petitioner entered an open plea of guilty to two counts of distribution of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C). See United States
v. Bailey, Case No. 10-cr-30005-DRH (Doc. 25).
On October 15, 2010, judgment was entered by the undersigned, sentencing
petitioner to concurrent terms of 216 months imprisonment on each count, six years
supervised release, a fine of $400, and a special assessment of $200 (Doc. 39 in
criminal case). Petitioner appealed, and trial counsel continued to represent him
during the appeal. Petitioner’s attorney ultimately moved to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967). United States v. Bailey, 417 F. App’x

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556 (7th Cir. 2011). After considering the issues raised by petitioner’s counsel
(petitioner did not file a response to the motion to withdraw), the Seventh Circuit
dismissed the appeal on March 31, 2011. Id. at 557. The court suggested that if
petitioner wished to raise a claim of ineffective assistance of counsel, it should be
presented on collateral review, noting that “we would not entertain a claim of
ineffective assistance on direct appeal where trial and appellate counsel are the
same[.]”

Id. Petitioner did not seek further review in the Supreme Court of the

United States.
The instant § 2255 motion was timely filed on September 19, 2011. Petitioner
raises four grounds for relief, all claiming that he was unconstitutionally denied the
effective assistance of counsel at trial. (Doc. 1, pp. 4-5). First, his attorney was
ineffective for failing to argue that “unlawful delivery” of a controlled substance as
defined in the Illinois statute, falls outside the definition of “controlled substance” in
the U.S.S.G. § 4B1.2, and thus he should not have been subject to the career
criminal enhancement based on this prior state conviction (Doc. 1-1, pp. 3-6; Docs.
1-2 & 1-3). Secondly, counsel failed to properly investigate petitioner’s mental health
problems, hindering the Court from properly considering these conditions as
mitigating factors at sentencing (Doc. 1-1, pp. 6-10). Third, counsel did not properly
investigate or object to the Pre-Sentence Investigation report, nor did he argue that
petitioner’s state conviction for unlawful delivery of a controlled substance should not
have been used to enhance his sentence (Doc. 1-1, pp. 10-11). Finally, counsel failed
to negotiate a plea agreement that would have allowed petitioner to serve his federal
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sentence concurrently with the remaining time he had to serve on a state sentence of
18 months (Doc. 1-1, p. 11).
In petitioner’s case, although he pled guilty, the open plea did not include any
waiver of the right to appeal or to collaterally attack his conviction (Docs. 25 & 36 in
criminal case). Thus, the guilty plea presents no barrier to the consideration of
Petitioner’s § 2255 motion.
Disposition
The Court ORDERS the Government to file a response to petitioner’s motion
on or before June 4, 2012. The Government shall, as part of its response, attach all
relevant portions of the record.

Digitally signed by David
R. Herndon
Date: 2012.05.03 13:56:27
-05'00'

IT IS SO ORDERED.
DATED: May 3, 2012

Chief Judge
United States District Court

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