Maybell v. USA
ORDER DENYING 5 Amended Motion to Vacate, Set Aside or Correct Sentence (2255) filed by Bryant K. Maybell. Signed by Judge Nancy J. Rosenstengel on 2/10/17. (klh2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRYANT K. MAYBELL,
UNITED STATES OF AMERICA,
) Case No. 13-CV-505-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter comes before the Court on Petitioner Bryant K. Maybell’s Amended
Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 5).
For the reasons set forth below, the motion is denied.
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Criminal Case
Petitioner Bryant Maybell was a part of a group who called themselves the
“JackMob” and sold crack cocaine on Jackson Street in Carbondale, Illinois, from 2005
until early 2009. In November 2008, three members of the group were indicted by a
federal grand jury for conspiracy to distribute crack cocaine. United States v. Wooley, et
al., SDIL Case No. 3:08-cr-30235, Doc. 1. Four months later, the indictment was
superseded to add five more group members, including Maybell, to the conspiracy
charge. Id. at Doc. 49. Approximately one year later, the indictment was superseded a
second time, and in addition to the conspiracy charge, Maybell was charged with two
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counts of possession of crack cocaine and one count of distribution of crack cocaine. Id.
at Doc. 218.
Maybell pleaded guilty to the possession and distribution charges on February
17, 2010, but he elected to go to trial on the conspiracy charge. United States v. Maybell,
SDIL Case No. 3:08-cr-30235-5, Doc. 257. On July 12, 2010, prior to trial, Maybell was
sentenced, on the possession and distribution charges. District Judge G. Patrick Murphy
calculated a total offense level of 33 and a criminal history category of five, which
resulted in a guideline range of 210 to 262 months. Id. at Doc. 310. Judge Murphy
sentenced Maybell to 240 months’ imprisonment on each charge, with the sentences to
run concurrently. 1 Id. at Doc. 315.
Shortly after the sentencing, the Government filed a Third Superseding
Indictment, which added two counts against a co-defendant but did not alter the
conspiracy charge against Maybell. United States v. Maybell, SDIL Case No. 3:08-cr30235-5, Doc. 333. On December 15, 2010, the Government filed a Fourth Superseding
Indictment that expanded the dates of the conspiracy to January 2005 through February
2009. Id. at Doc. 400. Each time an indictment was filed, the Government filed an
Information pursuant to 21 U.S.C. § 851 to establish that Maybell had two prior felony
drug convictions for possession of crack cocaine, which increased his potential prison
term on each count. Id. at Docs. 118, 240, 358, 426. 2
Judge Murphy retired in December 2013. This case was briefly reassigned to District Judge David R.
Herndon (see Doc. 4), but then transferred to the docket of the undersigned when she took the bench in
May 2014 (see Doc. 12).
2 The first was a 2005 conviction for possession of crack cocaine. United States v. Maybell, SDIL Case No.
3:08-cr-30235-5, Docs. 240, 490. He was initially sentenced to 60 days’ time served and 24 months’
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Maybell’s trial on the conspiracy charge began on January 24, 2011. United States
v. Maybell, SDIL Case No. 3:08-cr-30235-5, Doc. 428. After a three day trial, the jury
convicted Maybell of conspiracy to distribute crack cocaine. Id. at Docs. 433, 436, 438.
The jury also returned a special verdict finding beyond a reasonable doubt that Maybell
conspired to distribute 50 grams or more of crack cocaine. Id. at Doc. 440.
According to the Third Revised Presentence Investigation Report, Maybell’s
relevant conduct involved 2,898.13 grams of crack cocaine, which resulted in a base
offense level of 36. United States v. Maybell, SDIL Case No. 3:08-cr-30235-5, Doc. 490.
Two more levels were added because Maybell possessed a firearm during the
commission of the conspiracy, which resulted in a total offense level of 38. Id. His
criminal history category was five. Id. This resulted in a guideline range of 360 months
to life. Id. Because of his two previous drug convictions, however, Maybell faced a
statutory sentence of life imprisonment. Id. On August 8, 2011, at just 26-years-old,
Maybell was sentenced to life imprisonment, which was to run concurrently with his
previous sentences on the possession and distribution charges. Id. at Docs. 501, 506, 507.
Maybell appealed his conviction and sentence. United States v. Maybell, SDIL
Case No. 3:08-cr-30235-5, Doc. 508. Attorney Hannah V. Garst was appointed to
represent Maybell on appeal. Id. at Doc. 524. Ms. Garst later sought to withdraw
under Anders v. California, 386 U.S. 738 (1967), because she considered the appeal to be
frivolous. See id. at Doc. 554-2 (also available at United States v. Maybell, 482 F. App’x
probation, but his probation was quickly revoked, and he was sentenced to two years’ imprisonment. Id.
at Doc. 490. The second was a 2008 conviction for possession of crack cocaine. Id. at Docs. 240, 490. He
was sentenced to 104 days’ time served and 24 months’ probation. Id. at Doc. 490.
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171, 175 (7th Cir. 2012)). Maybell was given the opportunity to respond to Ms. Garst’s
Anders brief, but declined to do so. See id. The Seventh Circuit determined that any
challenges Maybell could have mounted regarding the sufficiency of the evidence, the
guidelines calculations, the imposition of an enhanced sentence, or the application of
the Fair Sentencing Act would have been frivolous. Id. Consequently, Ms. Garst’s
motion to withdraw was granted, and Maybell’s appeal was dismissed. Id.
B. § 2255 Petition
On May 31, 2013, Maybell filed his pro se Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255 (Doc. 1). On November 21, 2013, Maybell sought to
amend his motion (Doc. 2). Maybell’s request was granted, and his amended § 2255
motion was filed on December 11, 2013 (Doc. 5). The Government filed its response on
March 17, 2014 (Doc. 11). Maybell did not file a reply.
Maybell asks the Court to vacate, set aside, or correct his sentence because:
1) his appellate counsel rendered ineffective assistance of counsel “by
not arguing Carachuri-Rosendo v. Holder”;
2) his sentence was “unconstitutionally enhanced” under Alleyne v.
United States “by judicial factfinding of facts not found in the
charging instrument”; and
3) “prosecutorial misconduct, malicious, vindictive
[misled] the judge to enhance Petitioner’s sentence”
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28 U.S.C. § 2255 requires a court to vacate, set aside, or correct the sentence of a
prisoner in custody if it finds that “the sentence was imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C. § 2255. “[R]elief under § 2255 is an
extraordinary remedy because it asks the district court essentially to reopen the criminal
process to a person who already has had an opportunity for full process.” Almonacid v.
United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063,
1068 (7th Cir. 2006)). It “is available only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a fundamental defect has occurred
which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870,
878-79 (7th Cir. 2013) (citations omitted).
A. Evidentiary Hearing
As an initial matter, the Court addresses whether to conduct an evidentiary
hearing in the case. “A district court need not grant an evidentiary hearing in all § 2255
cases.” Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001). A hearing is not required
if “the motion, files, and records of the case conclusively show that the prisoner is
entitled to no relief.” Hutchings v. United States, 618 F.3d 693, 699-700 (7th Cir. 2010)
(citing Torzala v. United States, 545 F.3d 517, 525 (7th Cir. 2008)). Additionally, “a hearing
is not necessary if the petitioner makes allegations that are “vague, conclusory, or
palpably incredible,” rather than “detailed and specific.” Bruce, 256 F.3d at 597. On the
other hand, a hearing should be granted if the petitioner “alleges facts that, if proven,
would entitle him to relief.” Hutchings, 618 F.3d at 699 (citing Sandoval v. United States,
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574 F.3d 847, 850 (7th Cir. 2009)). These specifically detailed facts must be submitted in
an affidavit or set forth in a motion signed under penalty of perjury. Kafo v. United
States, 467 F.3d 1063, 1068 (7th Cir. 2006).
Here, Maybell did not submit an affidavit with his amended § 2255 motion (see
Doc. 5). Instead, he relies on allegations contained in the amended motion itself, which
can only be categorized as vague and conclusory (see Doc. 5). Maybell did, however,
include an affidavit with his original § 2255 motion (see Doc. 1). But even if the Court
were to consider that affidavit, none of the allegations contained in it would entitle him
to relief. Consequently, an evidentiary hearing is not required.
B. Ineffective Assistance of Counsel
Maybell first contends that his appellate counsel was ineffective for failing to
argue that he was not eligible for an enhanced sentence under 21 U.S.C. § 841(b)(1)(A)
based on the Supreme Court’s decision in Carachuri-Rosendo v. Holder, 560 U.S. 563
(2010) (Doc. 5).
A claim of ineffective assistance of counsel is properly raised in a § 2255 motion
because it implicates the Sixth Amendment, which provides criminal defendants the
right to counsel. U.S. CONST. amend. VI. “[A]nd inherent in this right is that the
defendant is entitled to the effective assistance of counsel.” United States v. Recendiz,
557 F.3d 511, 531 (7th Cir. 2009) (citing McMann v. Richardson, 397 U.S. 759, 771 n. 14
(1970)) (emphasis added). “To demonstrate that the right to counsel was violated by
ineffective assistance, a person challenging a conviction must meet the familiar two-part
standard set forth in Strickland.” McElvaney v. Pollard, 735 F.3d 528, 532 (7th Cir. 2013)
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(citing Strickland, 466 U.S. at 688). The petitioner must show that his counsel’s
performance was deficient, “meaning it fell below an ‘objective standard of
reasonableness’ informed by ‘prevailing professional norms.’” McElvaney, 735 F.3d at
532 (quoting Strickland, 466 U.S. at 688). See also Sussman v. Jenkins, 636 F.3d 329, 349 (7th
Cir. 2011) (“The question is whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not whether it deviated from best
practices or most common custom.” (quoting Harrington v. Richter, 562 U.S. 86, 88
(2011))). The petitioner also must show that “his counsel’s deficient performance
prejudiced him, meaning that there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’”
McElvaney, 735 F.3d at 532 (quoting Strickland, 466 U.S. at 688).
Maybell was eligible for an enhanced sentence under 21 U.S.C. § 841(b)(1)(A)
because he violated the Controlled Substance Act by conspiring to distribute crack
cocaine “after two or more prior convictions for a felony drug offense [had] become
final.” According to Maybell, however, based on the Supreme Court’s decision in
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), his two state felony drug offenses do
not count as “prior conviction[s] for a felony drug offense[s]” because he was not
imprisoned for a term exceeding one year (Doc. 5). Maybell claims his counsel on direct
appeal, Hannah Garst, was ineffective for failing to argue the applicability of CarachuriRosendo to his case (Doc. 5). The Court is unconvinced by Maybell’s argument.
In Carachuri-Rosendo v. Holder, the petitioner faced deportation based on his
second misdemeanor drug possession offense in Texas. Carachuri-Rosendo v. Holder, 560
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U.S. 563, 566 (2010). The petitioner sought to cancel his deportation under 8 U.S.C.
§ 1229b(a), which provides that “a lawful permanent resident subject to removal from
the United States may apply for discretionary cancellation of removal if . . . he ‘has not
been convicted of any aggravated felony.’” Carachuri-Rosendo, 560 U.S. at 566–67 (quoting
8 U.S.C. § 1229b(a)(3)) (emphasis added). The Supreme Court agreed with the petitioner
that his simple possession offense did not constitute an aggravated felony for purposes
of the Immigration and Nationality Act (“INA”).
For a state conviction to qualify as an “aggravated felony” under the INA, the
underlying conduct “must be punishable as a felony under federal law”—that is, a
crime for which the “maximum term of imprisonment authorized” exceeds one year.
Carachuri-Rosendo, 560 U.S. at 567. The offender “must also have been actually convicted
of a crime that is itself punishable as a felony under federal law.” Id. at 581–82
(emphasis in original) (citing Lopez v. Gonzales, 549 U.S. 47, 60 (2006)). With respect to
state convictions for simple possession, most convictions, including the petitioner’s in
Carachuri-Rosendo, are only punishable as a federal felony if the prosecutor elects to
charge the offender as a recidivist. Id. at 567–68. Therefore only recidivist simple
possession “might conceivably, be an ‘aggravated felony’” under the INA. Id. at 568.
The state prosecutor in Carachuri-Rosendo declined to charge the petitioner as a
recidivist. Carachuri-Rosendo, 560 U.S. at 582. Consequently, the state crime for which he
was “actually convicted”—simple possession without a recidivist enhancement—was
not itself punishable as a felony under federal law. Id. at 581–82 (citing Lopez v. Gonzales,
549 U.S. 47, 60 (2006)). His crime could not be elevated to a federal felony, much less an
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aggravated felony, after the fact simply because the petitioner hypothetically could have
been charged with recidivist simple possession.
Maybell zeroed in on the holding from Carachuri-Rosendo—that when deciding
whether a prior conviction is an “aggravated felony” within the meaning of the INA,
courts must look at the offense for which the defendant was actually convicted, not the
offense for which he hypothetically could have been convicted. Carachuri-Rosendo,
560 U.S. at 576. From that, Maybell extrapolated that when deciding whether a prior
conviction is a “felony drug offense” under 21 U.S.C. § 841(b)(1)(A), courts must look at
the punishment that was actually imposed, not the punishment that could have been
The Seventh Circuit’s case law does not support Maybell’s argument. For
purposes of § 841, a prior offense is a “felony drug offense” only if, among other things,
it is “punishable by imprisonment for more than one year under any law of the United
States or of a State . . . .” 21 U.S.C. § 802(44); Burgess v. United States, 553 U.S. 124, 126
(2008) (holding that § 802(44) is the operable definition of “felony drug offense” for
purposes of a § 841 sentencing enhancement). Notably, “felony drug offense” is not
defined as an offense that results in a sentence of imprisonment for more than one year.
Thus the definition makes clear that, contrary to Maybell’s argument, the focus is on the
potential punishment the offender faced, not the punishment that was actually imposed
or served. See United States v. Stokes, 351 F. App’x 115, 116 (7th Cir. 2009) (“[A] drug
offense need only be punishable by imprisonment for more than one year to qualify as a
felony . . . and a sentence of probation does not affect that classification.”); United States
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v. Mason, 103 F. App’x 22, 24 (7th Cir. 2004) (“The fact that Illinois may have discharged
Mason’s felony marijuana convictions is irrelevant to whether they operate as ‘prior
felony drug offenses’ under § 841(b)(1)(A).”); United States v. Graham, 315 F.3d 777, 783
(7th Cir. 2003) (“[T]he fact that Graham received probation [for possession of a
controlled substance] that was later discharged does not alter the fact that he possesses
a prior drug-related felony conviction qualifying him for the enhancement under
Under Illinois law, Maybell’s prior state convictions for possession of crack
cocaine were Class 4 felonies punishable by up to three years’ imprisonment. See 720
ILL. COMP. STAT. 570/402(c), 730 ILL. COMP. STAT. 5/5-4.5-45(a). Therefore, unlike the
petitioner in Carachuri-Rosendo, Maybell was actually convicted of a felony under
Illinois law, and he actually faced a maximum penalty of three years’ imprisonment. It
is immaterial that Maybell was not sentenced to and did not actually serve a term of
imprisonment of more than one year. As a result, Maybell’s prior convictions fall within
the definition of “felony drug offense” for the purposes of an enhanced sentenced
under § 841(b)(1)(A). The Court has no reason to believe that Carachuri-Rosendo changes
the analysis for an enhanced federal sentence based on prior Illinois convictions or
offers Maybell any basis for relief. See Clark v. United States, No. 13-CV-1026, 2013 WL
3032602, at *4 (C.D. Ill. June 17, 2013) (finding Carachuri-Rosendo did not affect
petitioner’s enhanced sentence based on prior conviction for possession of a controlled
substance in violation of 720 ILL. COMP. STAT. 570/402); Ford v. United States, No. 12-CV2090, 2012 WL 2370678, at *2 (C.D. Ill. June 21, 2012) (same). See also Stewart v. Warden,
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FCC Coleman-Low, 589 F. App’x 934, 937 (11th Cir. 2014) (“[Carachuri-Rosendo’s]
ultimate holding that non-recidivist simple drug possession could not be an
‘aggravated felony’ has no bearing on whether such an offense could be a ‘felony drug
offense’ under 21 U.S.C. § 841.”); Gargano v. United States, No. 02 CR. 516 JFK, 2014 WL
1725736, at *4 (S.D.N.Y. Apr. 30, 2014) (explaining why Carachuri-Rosendo has no bearing
on the petitioner’s enhanced federal sentence based on prior New Jersey convictions).
Accordingly, Ms. Garst’s performance was not deficient when she failed to argue
that Maybell was entitled to relief under Carachuri-Rosendo. And there is no reasonable
likelihood that but for Ms. Garst’s failure the outcome of Maybell’s appeal would have
been different. Thus, Maybell’s claim for ineffective assistance of counsel must be
C. Applicability of Alleyne
Maybell next contends that his sentence “was unconstitutionally enhanced by
judicial factfinding of facts not found in the charging indictment” (Doc. 5). Maybell did
not indicate which facts he was talking about, but the Court believes it was Judge
Murphy’s finding that Maybell continued his involvement in the charged conspiracy
after his second Illinois conviction for a felony drug offense became final in February
2008. This finding meant that Maybell had two prior felony drug convictions, which
increased the statutory minimum penalty he faced from 20 years’ imprisonment to life
imprisonment. See 21 U.S.C. § 841(b)(1)(A). Apparently, Maybell thinks a jury was
required to make that finding under Alleyne v. United States, 133 S.Ct. 2151 (2013). See id.
at 2161–63 (holding that any factual determination that increases the statutory
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mandatory minimum term to which a defendant is subject must be charged in the
indictment and proven beyond reasonable doubt to the factfinder).
The Government points out that there are a number of problems with Maybell’s
argument (Doc. 11). But the Court thinks it is only necessary to address the argument
that presents the clearest impediment to Maybell’s claim: Alleyne was not decided until
June 2013, which was almost two years after Maybell was sentenced. Therefore, the only
way Maybell might be entitled to relief under Alleyne is if its holding was declared
retroactive on collateral review. The Supreme Court has not held that Alleyne applies
retroactively to cases on collateral review. But the Seventh Circuit, and every other
appellate court that has considered the issue, has concluded that Alleyne does not apply
retroactively. Poe v. LaRiva, 834 F.3d 770, 773 (7th Cir. 2016); Davis v. United States, 817
F.3d 319, 326 (7th Cir. 2016); Crayton v. United States, 799 F.3d 623, 624 (7th Cir. 2015)
(collecting cases from other circuits), cert. denied, 136 S. Ct. 424 (2015).
Thus, Alleyne cannot provide Maybell with any relief, and this claim also must be
D. Prosecutorial Misconduct
Maybell’s last claim is that the Government engaged in prosecutorial misconduct
(Doc. 5). Specifically, Maybell claims the Government used “a trick, scheme and device
and an affirmative misrepresentation” to “mislead the judge to enhance [Maybell’s]
sentence” (Doc. 5).
Maybell’s claim of prosecutorial misconduct could have and should have been
raised on direct appeal. See, e.g., Chappell v. United States, 956 F.2d 272 (7th Cir. 1992). He
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is therefore barred from raising the claim in a § 2255 proceeding unless he can establish
both cause for the procedural default and actual prejudice resulting from it. Id. In his
§ 2255 petition, however, Maybell makes no attempt to explain his failure to raise this
issue on direct appeal (see Doc. 5). Maybell also does not specify which documents or
statements presented by the prosecutor were false or misleading. His vague and
unsupported allegations are not enough to warrant further inquiry into whether relief
under § 2255 is warranted. For these reasons, this claim can be summarily denied.
In conclusion, none of Maybell’s arguments convince the Court that he is entitled
to relief under § 2255.
CERTIFICATE OF APPEALABILITY
Should Maybell desire to appeal this Court’s ruling dismissing his motion, he
must first secure a certificate of appealability, either from this Court or from the Court
of Appeals. See FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c)(1). Pursuant to § 2253, a
certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.”
This requirement has been interpreted by the Supreme Court to mean that an
applicant must show that “reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Maybell need not show that his appeal will succeed, but he must show
“something more than the absence of frivolity” or the existence of mere “good faith” on
his part. Miller-El v. Cockrell, 537 U.S. 322, 337, 338 (2003). If the district court denies the
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request, a petitioner may request that a circuit judge issue the certificate of
appealability. FED. R. APP. P. 22(b)(1)-(3).
For the reasons detailed above, the Court has determined that Maybell has not
stated any grounds for relief under § 2255, and reasonable jurists could not debate that
conclusion. Thus, Maybell has not made “a substantial showing of the denial of a
constitutional right,” and a certificate of appealability will not be issued.
Bryant Maybell’s Amended Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255 (Doc. 5) is DENIED. The Court DECLINES to issue a
certificate of appealability. This action is DISMISSED with prejudice, and the Clerk of
Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: February 10, 2017
NANCY J. ROSENSTENGEL
United States District Judge
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