Owens v. United States of America

Filing 2

MEMORANDUM AND ORDER, The Court DENIES the petitioners § 2255 motion (Doc. 1) and DIRECTS the Clerk of Court to enter judgment accordingly and declines to issue a certificate of appealability. Signed by Judge J. Phil Gilbert on 8/14/2014. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MITCHELL R. OWENS,
Petitioner,
v.

Civil No. 14-cv-384-JPG

UNITED STATES OF AMERICA,

Criminal No 12-cr-40055-JPG-001

Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Mitchel R. Owens’ motion to vacate, set
aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). On December 6, 2012, the
petitioner pled guilty to one count of conspiring to distribute more than 50 grams of a mixture and
substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. At the
plea hearing and in a written stipulation of facts, the petitioner admitted his relevant conduct was
124.8 grams of pseudoephedrine. On March 22, 2013, the Court adopted the presentence
investigation report’s (“PSR”) finding that the petitioner’s relevant conduct was 124.8 grams of
pseudoephedrine, exactly what he admitted in his plea, which is the equivalent for sentencing
purposes of 1,248 kilograms of marihuana equivalent (“MEU”) or 78 grams of a mixture and
substance containing methamphetamine. The Court sentenced the petitioner to serve 151 months
in prison. The petitioner did not appeal his sentence.
In his § 2255 motion, the petitioner raises the following claim:


Ineffective assistance of counsel in violation of the Sixth Amendment for failure to object
to the PSR’s relevant conduct finding as including amounts beyond the scope of the
conspiracy.

He asks the Court to vacate his sentence and remand the case so he can be resentenced.
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United

States District Courts, the Court has determined that it is plain from the motion and the record of
the prior proceedings that the petitioner is not entitled to relief.
The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. This right to assistance of counsel encompasses the right to effective assistance of
counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d
687, 690 (7th Cir. 2009). A party claiming ineffective assistance of counsel bears the burden of
showing (1) that his trial counsel’s performance fell below objective standards for reasonably
effective representation and (2) that this deficiency prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 688-94 (1984); United States v. Jones, 635 F.3d 909, 915 (7th Cir.
2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009); Fountain v. United States, 211
F.3d 429, 434 (7th Cir. 2000).
To satisfy the first prong of the Strickland test, the petitioner must direct the Court to
specific acts or omissions of his counsel. Wyatt, 574 F.3d at 458. The Court must then consider
whether in light of all of the circumstances counsel’s performance was outside the wide range of
professionally competent assistance. Id. The Court’s review of counsel’s performance must be
“highly deferential[,] . . . indulg[ing] a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; accord Wyatt,
574 F.3d at 458. Counsel’s performance must be evaluated keeping in mind that an attorney’s
trial strategies are a matter of professional judgment and often turn on facts not contained in the
trial record. Strickland, 466 U.S. at 689. The Court cannot become a “Monday morning
quarterback.” Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
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To satisfy the second prong of the Strickland test, the plaintiff must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different, such that the proceedings were fundamentally unfair or unreliable.
Jones, 635 F.3d at 915; Fountain, 211 F.3d at 434; Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir.
2006). “A reasonable probability is defined as one that is sufficient to undermine confidence in
an outcome.” Adams, 453 F.3d at 435 (citing Strickland, 466 U.S. at 694).
Owens faults his counsel for failing to object to the PSR’s finding that his relevant conduct was

124.8 grams of pseudoephedrine, the equivalent of 1,248 kilograms of MEU for sentencing
purposes. Owens fails to recognize that this is the exact amount of the relevant conduct he
admitted under oath in his plea colloquy and in his written stipulation of facts. Counsel is not
deficient for failing to challenge a finding consistent with a defendant’s own admissions in a plea
colloquy, which are presumed to be true. See United States v. Chavers, 515 F.3d 772, 724 (7th
Cir. 2008). Furthermore, when a § 2255 petitioner faults his attorney for failing to object or
present evidence at sentencing, he bears the burden of demonstrating what evidence the attorney
should have presented and that the presentation of such evidence would have had a reasonable
probability of changing the result. Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005).
Owens has not pointed to any evidence or argument counsel could have used to overcome the
presumption that his admissions during the plea colloquy were true or to cause the Court to find a
different relevant conduct amount.
For these reasons, it is plain from the motion and the record of the prior proceedings that
the petitioner’s counsel was not constitutionally deficient, the petitioner did not suffer prejudice
from counsel’s performance, and the petitioner is not entitled to relief under § 2255.
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Accordingly, the Court DENIES the petitioner’s § 2255 motion (Doc. 1) and DIRECTS the Clerk
of Court to enter judgment accordingly.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings and Rule 22(b)(1) of the
Federal Rules of Appellate Procedure, the Court considers whether to issue a certificate of
appealability of this final order adverse to the petitioner. A certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004); Ouska v. Cahill-Masching,
246 F.3d 1036, 1045 (7th Cir. 2001). To make such a showing, the petitioner must “demonstrate
that reasonable jurists could debate whether [the] challenge in [the] habeas petition should have
been resolved in a different manner or that the issue presented was adequate to deserve
encouragement to proceed further.” Ouska, 246 F.3d at 1046; accord Tennard, 542 U.S. at 282;
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability should issue if the
petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.”). The Court finds that the petitioner has not made such
a showing and, accordingly, DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.
DATED: August 14, 2014
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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