Vance v. USA

Filing 16

MEMORANDUM AND ORDER, The Court DENIES Vances § 2255 motion, DIRECTS the Clerk of Court to enter judgment accordingly and DECLINES to issue a certificate of appealability. Signed by Judge J. Phil Gilbert on 1/22/2015. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERRENCE R. VANCE,
Petitioner,
v.

Civil No. 14-cv-790-JPG

UNITED STATES OF AMERICA,

Criminal No 09-cr-40070-JPG

Respondent.
MEMORANUM AND ORDER
This matter comes before the Court on petitioner Terrence R. Vance’s motion to vacate, set
aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Government has
responded to the motion (Doc. 15).
I.

Background
On March 16, 2010, the petitioner pled guilty to two counts of possession with intent to

distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). At the petitioner’s sentencing on
September 17, 2010, the Court found that the petitioner was a career offender based on one prior
conviction for a crime of violence (stealing from a person) and one prior conviction for a drug
crime (distribution of a controlled substance). See U.S.S.G. §4B1.1 (2009). The Court
sentenced the petitioner to serve 262 months in prison. The petitioner appealed, and the Court of
Appeals affirmed the Court’s decision, United States v. Vance, 659 F.3d 613 (7th Cir. 2011), but
the Supreme Court vacated the judgment and remanded for resentencing in light of Dorsey v.
United States, 132 S. Ct. 2321 (2012) (finding the Fair Sentencing Act of 2010 applied to a
defendant sentenced after enactment even if the offense of conviction occurred before enactment).
Vance v. United States, 133 S. Ct. 65 (2012).

On remand, the Court held a new sentencing proceeding on November 20, 2012. The
Court again found the petitioner to be a career offender based on the same prior convictions and
sentenced him to serve 200 months in prison. The petitioner again appealed, and on August 20,
2013, the Court of Appeals granted counsel’s motion to withdraw and dismissed the appeal. The
petitioner did not seek a writ of certiorari from the Supreme Court.
In his § 2255 motion, the petitioner argues that his counsel was ineffective in violation of
his Sixth Amendment rights because he:


failed to object to the use of a prior conviction for stealing as a crime of violence to support
career offender status;



failed to object to the career offender guideline provisions as unconstitutional; and



failed to investigate evidence showing another person was totally responsible for the drugs
and other materials seized in a November 7, 2008, search and failed to argue this theory in
the petitioner’s defense.

The Court directed the Government to respond to these arguments, which is has done.
II.

Analysis
The Court must grant a § 2255 motion when a defendant’s “sentence was imposed in

violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However, “[r]elief
under § 2255 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.’” United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting
Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013), cert. denied, 134 S. Ct. 2830 (2014)).
It is proper to deny a § 2255 motion without an evidentiary hearing if “the motion and the files and
records of the case conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C.
2

§ 2255(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
All of Vance’s claims for relief allege ineffective assistance of counsel in violation of the
Sixth Amendment to the Constitution. The Sixth Amendment 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 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).
3

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).
A.

Failure to Object to Use of Stealing From a Person for Career Offender Status

Vance faults his counsel for failing to argue to the Court at sentencing that one of the prior
convictions listed in the Presentence Investigation Report was not a “crime of violence” such that
it could be used to support career offender status under U.S.S.G. § 4B1.1 (2009). He believes his
prior conviction was for “Simple Stealing,” a misdemeanor which is not a crime of violence. The
Government argues that Vance’s prior conviction was not for “Simple Stealing” but for “Stealing
from a Person, a Class C felony,” which is a crime of violence for career offender purposes. It
believes Vance’s counsel was not deficient for failing to make a meritless argument and that Vance
suffered no prejudice from counsel’s performance. It further challenges Vance’s ability to raise
this matter in a § 2255 motion.
As a preliminary matter, Vance’s challenge is appropriate to be heard in a § 2255
proceeding. It is true that United States v. Coleman, 763 F.3d 706, 708-09 (7th Cir. 2014), and
Hawkins v. United States, 706 F.3d 820, 823 (7th Cir. 2013), cert. denied, 134 S. Ct. 1280 (2014),
hold that, if a defendant’s sentence is within the statutory range, an erroneous career offender
finding is not cognizable in a § 2255 proceeding. This is because, in light of the Court’s
discretion to give an appropriate sentence regardless of the advisory guideline range, an erroneous
4

career offender finding does not work a miscarriage of justice for § 2255 purposes. Thus, had
Vance directly challenged the calculation of his guideline range, his claim would not be cognizable
here. However, he has not done this; instead, he has invoked the Sixth Amendment right to
counsel to bring the issue before the Court. See United States v. Jones, 635 F.3d 909, 916 (7th
Cir. 2011) (“In the sentencing context, an attorney’s unreasonable failure to identify and bring to a
court’s attention an error in the court’s Guidelines calculations that results in a longer sentence
may constitute ineffective assistance entitling the defendant to relief.”). In the Sixth Amendment
context, the Court can properly consider whether Vance’s counsel was deficient in his assessment
of the career offender guideline application in September 2010. The Court now turns to that
inquiry.
At the time the Court determined Vance to be a career offender in September 2010,
U.S.S.G. § 4B1.1 (2009) stated:
A defendant is a career offender if (1) the defendant was at least eighteen years old
at the time the defendant committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a) (2009) (emphasis added). The guidelines further define a crime of violence
as:
any offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that –
(1) has as an element the use, attempted use, or threatened use of physical
force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential risk of
physical injury to another.
5

U.S.S.G. § 4B1.2(a) (2009). There is no dispute that Vance satisfies the first two requirements to
be a career offender and that he has one prior felony for a controlled substance offense. Vance
takes issue with his counsel’s failure to object to the Court’s classification of his other prior
conviction as a crime of violence.
The Supreme Court outlined an approach to deciding whether a prior conviction is a crime
of violence in Descamps v. United States, 133 S. Ct. 2276 (2013), although it had established this
approach in prior cases. See Johnson v. United States, 559 U.S. 133 (2010); Nijhawan v. Holder,
557 U.S. 29 (2009); Shepard v. United States, 544 U.S. 13 (2005); Taylor v. United States, 495
U.S. 575 (1990). Descamps noted that where the criminal statute of conviction is divisible, that
is, where there are alternative paths with different elements to reach a conviction, the Court may
use the “modified categorical approach” to determine whether the offense qualifies as a violent
felony under 18 U.S.C. § 924(e)(2)(B)(ii) for purposes of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e).1 Id. at 2281. Under the modified categorical approach, the
Court may consult the charging documents and other judicial documents in the underlying case to
see which of the alternative ways of reaching a conviction was used and whether that way satisfies
the definition of a violent felony set forth in § 924(e)(2)(B)(ii). Id. On the other hand, the Court
must use the “categorical approach” where the criminal statute is not divisible, that is, where it
contains a single set of elements without alternative ways to reach a conviction. Id. at 2282.
Under the “categorical approach,” the Court may only consider the elements of the statute of
conviction to see if the conviction qualifies as a violent felony. In neither case can the Court

At the time the Court found Vance to be a career offender, courts interpreted “violent felony”
under the ACCA and “crime of violence” in the same way. See United States v. Templeton, 543
F.3d 378, 380 (7th Cir. 2008).
6
1

consider the facts of the underlying case.
Vance’s prior conviction as stated in his 2000 judgment of conviction was for “Stealing
from a Person, a Class C felony” committed in 1999. Although the judgment does not mention
the specific statute Vance violated, “Stealing from a Person, a Class C felony” under Missouri law
is prohibited by V.A.M.S. 570.030. The first subsection of the statute, V.A.M.S. 570.030.1,
prohibits stealing generally, and a later subjection, V.A.M.S. 570.030.3(2), classifies stealing from
a person as a Class C felony:
1. A person commits the crime of stealing if he or she appropriates property or
services of another with the purpose to deprive him or her thereof, either without
his or her consent or by means of deceit or coercion.
***
3. Stealing is a class C felony if . . . (2) The actor physically takes the property
appropriated from the person of the victim. . . .
V.A.M.S. 570.030 (1999). Regardless of whether V.A.M.S. 570.030 is viewed as a divisible
statute for which the Court may consult judicial documents to determine that the conviction
qualified under V.A.M.S. 570.030.3(2), or whether V.A.M.S. 570.030.3(2) is viewed an
indivisible statute prohibiting “Stealing from a Person,” it is clear from Vance’s judgment of
conviction that he committed the crime of “Stealing from a Person, a Class C felony.” No other
document or underlying facts need be considered to come to this conclusion. It is also clear that
under the categorical or modified categorical approaches discussed in Descamps, the Court could
not have consulted the underlying facts of Vance’s case, as he now says his counsel should have
urged the Court to do, to find that his conviction was really for “Simple Stealing.” Any attempt
by counsel to argue that Vance was not convicted of “Stealing from a Person, a Class C felony,” or
that he was only convicted of some other category of stealing would have been unconvincing, and
7

counsel is not deficient for failing to make a frivolous argument. Warren v. Baenen, 712 F.3d
1090, 1104 (7th Cir. 2013); Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005); Whitehead
v. Cowan, 263 F.3d 708, 731 (7th Cir. 2001).
The Court now turns to the question of whether counsel was constitutionally ineffective for
failing to argue that the crime of “Stealing from a Person, a Class C felony,” is a crime of violence
under U.S.S.G. § 4B1.2(a) (2009). He was not; at the time of the Court’s career offender finding
it was clear that stealing from a person qualified as a crime of violence because it fit into the last
category – the residual clause – of U.S.S.G. § 4B1.2(a)(2) (2009), that is, it “otherwise involves
conduct that presents a serious potential risk of physical injury to another.”
At the time Vance was sentenced, the United States Court of Appeals for the Eighth Circuit
had decided that stealing from a person in violation of V.A.M.S. 570.030.3(2) was a crime of
violence. United States v. Hennecke, 590 F.3d 619 (8th Cir. 2010).2 The Hennecke court applied
the rule announced in Begay v. United States, 553 U.S. 137 (2008), in which the Supreme Court
examined whether a driving under the influence offense (“DUI”) was a “violent felony” under the
residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), which is identical in all material
respects to the residual clause of U.S.S.G. § 4B1.2(a)(2). The Begay Court interpreted the
residual clause to include only crimes roughly similar in kind and degree of risk posed to the
crimes listed immediately before the residual clause (i.e., burglary, arson, extortion, use of
explosives), not every crime that “presents a serious potential risk of physical injury to another.”
Id. at 142. It found that DUI differed from burglary, arson, extortion and use of explosives
because there was no “purposeful, violent, and aggressive conduct” involved in a DUI. Id. at 145.
At the time Hennecke was decided, V.A.M.S. 570.030.3(2) (1999) had been amended in ways
that are immaterial to this case.
8
2

It concluded that DUI was not sufficiently like burglary, arson, extortion or use of explosives that
Congress meant to have it covered by the residual clause. Id. at 142.
Applying the Begay test, the Hennecke court held that the crime of stealing from a person
posed a risk of confrontation with the victim such that it presented a serious risk of physical injury
and was purposeful, violent and aggressive. Hennecke, 590 F.3d at 622-23. This is because of
the almost certain contact between the victim and the perpetrator during the crime, which would be
likely to lead to violence. Id. at 623. It therefore qualified as a crime of violence under U.S.S.G.
§ 4B1.2(a)(2).
Similarly, in an unpublished opinion, the United States Court of Appeals for the Seventh
Circuit held the same day Begay was decided that a conviction under Iowa law for “tak[ing]
possession or control of the property of another with the intent to deprive the owner thereof,” Iowa
Code Ann. § 714.1, where the theft was “from the person of another,” Iowa Code Ann. § 714.2(1),
was a crime of violence for career offender purposes. United States v. Canfield, 273 Fed. App’x
565, 567-68 (7th Cir. 2008), cert. denied, 555 U.S. 1139 (2009). The Canfield court noted that
“[t]heft from an individual carries the risk of physical injury because there is the potential for
physical confrontation with the thief,” and that in such circumstances “there is a likelihood that the
victim will resist or defend in a manner that will lead to immediate violence.” Id. at 568 (internal
quotations omitted) (citing United States v. Howze, 343 F.3d 919, 924 (7th Cir. 2003) (holding
theft from an individual is a violent felony under the ACCA)).
In light of the supportive decisions contrary to Vance’s position from the Seventh Circuit
and Eighth Circuit Courts of Appeals, the Court believes Vance’s counsel was reasonable in not
arguing that Vance’s offense of stealing from a person did not qualify as a crime of violence.
9

Additionally, Vance has suffered no prejudice from his counsel’s failure to advance this argument.
In light of the law at the time the Court found Vance to be a career offender, the Court would have
rejected Vance’s argument based on the reasons set forth by the Hennecke and Canfield courts.
For these reasons, the Court finds Vance’s counsel was not constitutionally deficient.
Vance is not entitled to relief under § 2255 on this basis.
B.

Failure to Object to Career Offender Guideline Provision

Vance next faults his counsel for failing to argue that the career offender guideline,
U.S.S.G. § 4B1.1, is unconstitutional. He believes the statute directing the Sentencing
Commission to fashion sentencing guideline ranges at or near the statutory maximum for repeat
offenders, 28 U.S.C. § 994(h), instructs that such heightened ranges should only apply where there
are two prior drug felonies or two prior crimes of violence, but not one of each. However, the
guideline the Sentencing Commission drafted, U.S.S.G. § 4B1.1, authorizes career offender status
where the two prior convictions consist of one drug felony and one crime of violence. He draws
his conclusion about Congress’ intent from the fact that 28 U.S.C. § 994(h) does not use the word
“either” to describe the prior offense requirement where U.S.S.G. § 4B1.1 does. Since U.S.S.G.
§ 4B1.1 authorizes career offender status beyond what Congress intended, Vance argues, his
counsel should have argued that U.S.S.G. § 4B1.1 should not be followed. See United States v.
Labonte, 520 U.S. 751, 757 (1997) (noting that guidelines that are at odds with Congressional
intent must give way).
The Government argues that the plain language of U.S.S.G. § 4B1.1 does not require that
the two prior felonies be of the same nature. It further notes that the United States Court of
Appeals for the Seventh Circuit has held that the career offender guideline is not subject to a
10

constitutional vagueness challenge, United States v. Tichenor, 683 F.3d 358, 364-65 (7th Cir.
2012), and does not otherwise violate the due process clause, Damerville v. United States, 197
F.3d 287, 290 (7th Cir. 1999).
Vance’s counsel was not deficient for failing to advance the argument that U.S.S.G.
§ 4B1.1 is inconsistent with 28 U.S.C. § 994(h) and must therefore be disregarded in the
inconsistent aspect. That statute provides that the Sentencing Commission shall assure a high
guideline range for a defendant convicted of a drug or violent crime who is at least eighteen at the
time of his crime and who:
has previously been convicted of two or more prior felonies, each of which is—
(A) a crime of violence; or
(B) an offense described in section 401 of the Controlled Substances
Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the
Controlled Substances Import and Export Act (21 U.S.C. 952(a),
955, and 959), and chapter 705 of title 46.
28 U.S.C. § 994(h)(2). In contrast, U.S.S.G. § 4B1.1 provides that the defendant is eligible for
career offender status if he is convicted of a drug or violent crime, is at least eighteen at the time of
his crime, and “has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a)(3) (emphasis added).
There is no substantive difference between 28 U.S.C. § 994(h)(2) and U.S.S.G.
§ 4B1.1(a)(3) as far as the nature of the past felonies despite the fact that one uses the word
“either” and the other does not. Most importantly, 28 U.S.C. § 994(h)(2) provides that each of the
two prior felonies must be a crime of violence or an offense under the listed drug statutes, that is,
the first prior felony must be a crime of violence or a drug crime, and the second prior felony must
be a crime of violence or a drug crime. This is consistent with U.S.S.G. § 4B1.1(a)(3). Had
11

Congress intended to require both prior crimes to be of the same nature, it would have said, “ . . .
has previously been convicted of two or more prior felonies, both of which are. . . . (A) crimes of
violence or (B) offenses described in . . . .” That would have meant that both of the prior felonies
would have to be crimes of violence or both would have to be drug crimes. Congress did not say
that, and Vance’s attempt to argue that it did is unavailing.
Vance’s prior conviction for “Stealing from a Person, a Class C felony” is a crime of
violence or a drug crime, and his prior conviction for unlawful delivery of a controlled substance is
a crime of violence or a drug crime. Thus, the Court’s finding that he was a career offender is not
inconsistent with 28 U.S.C. § 994(h)(2). His counsel was therefore not deficient for failing to
make this meritless argument, and Vance suffered no prejudice as a result of counsel’s
performance. Vance is not entitled to § 2255 relief on this basis.
C.

Failure to Investigate and Argue Responsibility of Another

Vance believes his trial counsel provided ineffective assistance of counsel because he
failed to investigate evidence showing he was innocent of the second count of possession with
intent to distribute crack cocaine (Count 2). Count 2 charged that on or about November 7, 2008,
Vance possessed with intent to distribute five grams or more of crack cocaine. This charge was
based on evidence found during a November 7, 2008, search of the residence rented by Vance’s
girlfriend, Sierra Tate. Vance was staying with Tate at the time the search was conducted. After
admitting in his plea agreement that the crack cocaine found in the search belonged to him, he now
faults his counsel for failing to investigate an undated, unsworn letter he claims he provided to his
counsel from Tate in which she claimed 100% ownership in the contraband (except for the scales)
found in the search.
12

The Government believes Vance cannot overcome with an unsworn, undated letter his
sworn admission in his plea colloquy that he possessed 25.1 grams of crack cocaine, knew it was
crack cocaine, and intended to distribute it. The Government also argues Vance suffered no
prejudice because the guideline ranges on Counts 1 and 2 were the same. Even without a
conviction for Count 2, his sentence would have been the same. Finally, the Government argues
that counsel was not deficient in his advice to Vance to plead guilty because there was
overwhelming evidence against Vance that he was guilty of Count 2 and other uncharged drug
offenses. Counsel’s advice to plead guilty was reasonable, the Government contends, to obtain a
three-point offense level reduction for acceptance of responsibility and to avoid further potential
charges based on Vance’s additional drug activities.
It is true that an attorney has “a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington,
466 U.S. 668, 691 (1984); accord Wiggins v. Smith, 539 U.S. 510, 521 (2003); Warren v. Baenen,
712 F.3d 1090, 1097 (7th Cir. 2013); Adams v. Bertrand, 453 F.3d 428, 436 (7th Cir. 2006).
When a petitioner claims his attorney’s failure to investigate led to bad advice to plead guilty, to
establish prejudice under the Strickland test, the petitioner must show that “the information that
might have been discovered ‘would have led counsel to change his recommendation as to the
plea.’” Richardson v. United States, 379 F.3d 485, 488 (7th Cir. 2004) (per curiam) (quoting Hill
v. Lockhart, 474 U.S. 52, 59 (1985)); accord Warren, 712 F.3d at 1097.
Here, Vance admits he told his counsel about Tate’s claim of responsibility and gave him
Tate’s unsworn, undated letter but that counsel rejected it, saying she would not be credible.
Thus, Vance’s complaint is not that his counsel did not know about Tate because of a deficient
13

investigation but that he judged her testimony would not be beneficial. This is a reasonable
conclusion in light of the fact that Tate had given a statement to law enforcement shortly after the
search in which she stated that she had twice seen Vance with 1/8-ounce rocks of crack cocaine,
that the digital scale with white powder residue seized belonged to Vance, and that she felt
confident he would take ownership of the illegal items in the residence. Furthermore, Vance’s
fingerprints were found on baggies seized in the search that are commonly used to package crack
cocaine. Additional witnesses had given statements about Vance’s substantial drug activities,
including selling crack cocaine from Tate’s residence, on occasion while she was present.
Calling Tate as a witness at trial would have subjected her to impeachment by her prior statements
and could have produced eyewitness testimony about Vance’s drug activities. Furthermore, if
consistent with her letter, her testimony would have been self-incriminating, so it is likely she
would have taken refuge in the Fifth Amendment had she been called as a witness. In any case, it
was reasonable for Vance’s counsel to believe that Tate’s testimony, if she testified, was not likely
to convince a jury that Vance was not guilty in light of the other evidence in the case and may have
even been harmful to his case.
In light of the evidence, counsel’s judgment that conviction on Count 2 was likely and that
Vance would be better off pleading guilty was reasonable. By pleading guilty in a timely manner,
he received three offense levels off for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and
(b), and he avoided further charges for other illegal drug and activity. Had he been convicted at
trial and not received the acceptance of responsibility reduction, his guideline range under
U.S.S.G. § 4B1.1(b)(B) would have been 34. With his criminal history of VI, established by his
career offender status, his guideline sentencing range would have been 262 to 237 months. With
14

the acceptance of responsibility, his guideline sentencing range was 188 to 235 months. It was
reasonable for counsel to recommend pleading guilty in this situation.
Finally, Vance has not produced objective evidence that, had counsel investigated Tate’s
role more or offered her as a witness, there is a reasonable probability he would not have pled
guilty and instead would have gone to trial. Hill, 474 U.S. at 56-57; United States v. Parker, 609
F.3d 891, 894 (7th Cir. 2010); Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). To
obtain § 2255 relief from an allegedly ill-advised guilty plea, counsel’s deficient performance
must have been a decisive factor in the defendant’s decision to enter the guilty plea. Wyatt, 574
F.3d at 458; see Julian v. Bartley, 495 F.3d 487, 498 (7th Cir. 2007). To make such a showing,
the petitioner must present objective evidence that he would not have entered a guilty plea; his own
self-serving testimony that he would have insisted on going to trial is not enough. Koons v.
United States, 639 F.3d 348, 351 (7th Cir. 2011); McCleese v. United States, 75 F.3d 1174, 1179
(7th Cir. 1996) (citing Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991)); see Wyatt, 574 F.3d
at 458 (stating “a defendant’s mere allegation that he would have chosen a path other than the
conditional plea is insufficient by itself to establish prejudice.”). Objective evidence can include
testimonial evidence, the history of the plea negotiations showing a change of plans immediately
after counsel’s error, and the type of error likely to impact a plea. Julian, 495 F.3d at 499-500.
Here, Vance has presented no objective evidence to support his self-serving assertions that
had his counsel pursued the defense that Tate was responsible for all of the drugs found in the
house where he was staying, he would not have pled guilty. On the contrary, Vance apparently
knew since early on in his case that Tate was willing to say – at least not under oath – that the
seized items were hers, yet he pled guilty anyway. He admitted under oath in the plea colloquy,
15

after careful inquiry by the Court and discussion with his attorney, that the crack cocaine was his
and that he intended to distribute it. The Court presumes these sworn statements to be true, see
United States v. Chavers, 515 F.3d 722, 724 (7th Cir. 2008), and nothing Vance says now leads the
Court to believe there is a reasonable probability Vance was not telling the truth or that he would
not have pled guilty had counsel performed differently. Vance is not entitled to § 2255 relief on
this basis.
III.

Certificate of Appealability
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 Vance has not made such a
showing and, accordingly, declines to issue a certificate of appealability.
IV.

Conclusion
For the foregoing reasons, the Court DENIES Vance’s § 2255 motion, DIRECTS the
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Clerk of Court to enter judgment accordingly and DECLINES to issue a certificate of
appealability.
IT IS SO ORDERED.
DATED: January 22, 2015
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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