Wooten v. USA

Filing 2

ORDER directing the government to respond to Wooten's 28 U.S.C. 2255 petition. Signed by Chief Judge David R. Herndon on 1/10/14. (klh, )

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

CORTEZ WOOTEN,
Plaintiff,
vs.

No. 13-1335-DRH

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

November 29, 2012, the Court re-sentenced Wooten to 360 months in
prison for possession with the intent to distribute 50 grams or more of
cocaine base. See United States v. Wooten, 10-30088-DRH; Docs. 136 &
137. During the proceedings, Wooten was represented by attorney Rodney
Holmes. Wooten did not appeal this sentence and judgment.
In his § 2255 petition, Wooten raises several 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

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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,
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.

Page 2 of 3

In his motion, petitioner alleges that his counsel’s performance was
below a reasonable standard, and that this caused him to be found guilty
and/or received such a lengthy sentence. 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 been found 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 January, 2014.

David R.
Herndon
2014.01.10
03:31:13 -06'00'

Chief Judge
United States District Court

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