Clarke v. USA

Filing 2

ORDER directing the United States to respond to the petition. Signed by Chief Judge David R. Herndon on 4/11/13. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID CLARKE,
Plaintiff,
No. 13-0342-DRH

vs.
UNITED STATES OF AMERICA,
Defendant.

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 April
5, 2012, the Court sentenced Clarke to 168 months in prison for
conspiracy to distribute marijuana and judgment reflecting the same was
entered on April 9, 2012 (Docs. 46 & 50). During the proceedings, Clarke
was represented by attorney Daniel Bruntrager. Thereafter, Clarke, pro se,
filed a notice of appeal (Doc. 52). On April 20, 2012, the Seventh Circuit
Court of Appeals issued a corrected Mandate in this case (Doc. 59). The
Mandate stated:
“Upon consideration of the MOTION TO DISMISS THE NOTICE OF
APPEAL, filed April 20, 2012, by counsel for the appellant,
IT IS ORDERED that the appeal is DISMISSED pursuant to Federal Rule
of Appellate Procedure 42(b) and Circuit Rule 51(f).”
(Doc. 59).
Page 1 of 3

In his § 2255 petition, defendant raises a slew of arguments for relief,
all which center around claims of ineffective assistance of counsel.
Although petitioner did not raise these grounds on appeal, he may proceed
on his §2255 petition if he can show either “cause for the default and actual
prejudice as a result of the alleged violation of federal law,” or “that failure
to consider the claims will result in a fundamental miscarriage of justice.”
Coleman v.Thompson, 501 U.S. 722, 750 (1991) (emphasis added); see
also Edwards v. Carpenter, 529 U.S. 446, 455 (2000).
In Murray v. Carrier, the Supreme Court held that ineffective
assistance of counsel may constitute cause. However, “[s]o long as a
defendant

is

represented

by

counsel

whose

performance

is

not

constitutionally ineffective under the standard established in Strickland v.
Washington, [466 U.S. 668 (1984),] [there is] no inequity in requiring him
to bear the risk of attorney error that results in a procedural default.”
Murray, 477 U.S. at 488 (emphasis added).
In order to show ineffective assistance of counsel under Strickland, a
petitioner must satisfy yet another two pronged test by showing: (1)
“counsel’s

representations

fell

below

an

objective

standard

of

reasonableness” (the performance prong); and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different” (the prejudice prong). Strickland,

Page 2 of 3

466 U.S. at 688, 694. In Castellanos v. United States, 26 F.3d 717 (7th
Cir. 1994), the Seventh Circuit held that a § 2255 movant need not
demonstrate prejudice when raising an allegation of ineffective assistance of
counsel where petitioner’s lawyer failed to file a requested direct appeal. Id.
at 719.
In his motion, petitioner alleges that his counsel’s performance was
below a reasonable standard, and that this caused him to plead guilty. In
essence, petitioner is arguing that but for the grounds raised in his motion,
he would have had sufficient counsel, and would likely have not plead guilty
and/or received such a lengthy sentence .
The Court ORDERS the government to file a response to petitioner’s
motion within THIRTY (30) DAYS of the date of this Order. The
government shall, as part of its response, attach all relevant portions of the
record.
IT IS SO ORDERED.
Signed this 10th day of April, 2013.

Digitally signed by
David R. Herndon
Date: 2013.04.11
12:59:51 -05'00'
Chief Judge
United States District Court

Page 3 of 3