Beard-Hawkins v. USA

Filing 31

ORDER DENYING denying Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Delenthegia "Del" Beard-Hawkins (Doc. 7 ) and DENYING as moot Motions (Docs 27 , 28 , 29 , and 30 ). Signed by Judge Staci M. Yandle on 3/27/2020. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DELENTHEGIA BEARD-HAWKINS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 17-CV-1058-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Petitioner Delenthegia Beard-Hawkins moves to vacate, set aside, or correct her sentence
under 28 U.S.C. § 2255 (Doc. 7). She claims her trial counsel was ineffective in failing to object
to a four-level enhancement of her Guidelines base offense level for trafficking of firearms
(Ground 1) and failing to object to a two-level enhancement for an altered weapon when the
weapon’s serial number was not altered (Ground 3). She also claims she was denied the right to
counsel to prepare her testimony against a co-defendant and when she “was made to meet with the
government for a significant amount of time” (Ground 2).
Additionally, Petitioner has filed the following motions now before the Court: Motion for
Release of Passport (Doc. 27); Motion for Reconsideration (Doc. 28); and two Motions for Status
(Docs. 29 and 30). For the following reasons, the §2255 Petition is DENIED and the Motions are
DENIED as MOOT.
Procedural and Factual Background
On June 17, 2015, Petitioner was charged by a federal grand jury in a Superseding
Indictment with:

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Count 3:

Transfer of a Firearm and Ammunition to a Previously Convicted
Felon in violation of 18 U.S.C. § 922(d)(1) and 924(a)(2).

Count 4:

Unlawful User of a Controlled Substance in Possession of Firearms
in violation of 18 U.S.C. § 922(g)(3) and 924(a)(2).

(United States v. Beard-Hawkins, 3:15-CR-30001-SMY-2, Doc. 67). Petitioner pled guilty on
December 16, 2015 pursuant to a written plea agreement (Id. Docs. 123 and 124, and 125). The
United States Probation Office filed a Presentence Investigation Report under seal (“PSR”) on
March 3, 2016 (Id. Doc. 169). According to the PSR, the statutory sentencing range was no more
than 10 years imprisonment and no more than 3 years of supervised release on each Count (Id.).
Based on a Total Offense Level of 23 and a Criminal History Category of I, the Guidelines range
was calculated as 46-57 months imprisonment and 1 to 3 years of supervised release (Id.).
The Plea Agreement reflected the same statutory and Guidelines ranges for imprisonment
and supervised release, and the government agreed to recommend the low end of range at
sentencing (Id. 124). The Plea Agreement also contained a limited waiver of right to appeal or
collaterally attack the conviction and sentence:
However, in exchange for the recommendations and concessions made by the
Government in this Plea Agreement, Defendant knowingly and voluntarily
waives the right to contest any aspect of the conviction and sentence, including
the manner in which the sentence was determined or imposed, that could be
contested under Title 18 or Title 28, or under any provision of federal law, except
that if the sentence is imposed is in excess of the Sentencing Guidelines as
determined by the Court (or any applicable statutory minimum, whichever is
greater), Defendant reserves the right to appeal the substantive reasonableness of
the term of imprisonment… Defendant’s waiver of the right to appeal or bring
collateral challenges shall not apply to: 1) claims of ineffective assistance of
counsel; 2) any subsequent change in the interpretation of the law by the . . . Court
. . . declared retroactive . . . and that renders Defendant actually innocent of the
charges covered therein; 3) appeals based upon Sentencing Guideline Amendments
that are made retroactive.
(Id. Doc. 124, pp. 10, 11 (emphasis in original)).

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At the March 3, 2017 sentencing, the government recommended a sentence below the
Guidelines range, and Petitioner argued for a below-Guidelines sentence of probation (Id. Doc.
312). The Court ultimately sentenced Petitioner to a term of 24 months imprisonment and 1 year
of supervised release on each Count, to be served concurrently, and imposed a $200 fine (Id.).
Judgment was entered on March 6, 2017 (Id. Doc. 316). Petitioner did not file a direct appeal of
her conviction or sentence. The § 2255 Petition currently before the Court was filed on October
2, 2017 (Doc. 1) and was amended on November 13, 2017 (Doc. 7). Subsequent motions to amend
the Petition were denied (Docs. 13 and 15). Petitioner was released from prison on or about
September 17, 2018, but desires to proceed with this matter in order to have her record expunged
so that she can continue with her line of work (Docs. 18, 23 and 24).
Discussion
Relief under 28 U.S.C. § 2255 is limited to “[a] prisoner in custody.” For purposes of the
statute, custody refers to physical confinement and those who are on parole. Maleng v. Cook, 490
U.S. 488, 491 (1989). Although Petitioner has been released from custody and her term of
supervised release has expired, she may still be permitted to pursue her § 2255 Petition because
she was in custody at the time the Petition was filed. See, Torzall v. United States, 545 F.3d 517,
521 (7th Cir. 2008). Because Petitioner is subject to collateral consequences of her conviction, the
Court will consider the Petition. See, Puchner v. Kruziki, 111 F.3d 541, 543 (7th Cir. 1997).
Section 2255 may only be employed to correct errors that vitiate the sentencing court’s
jurisdiction or are otherwise of constitutional magnitude. Blake v. United States, 723 F.3d 870,
878 (7th Cir. 2013). “Pursuant to § 2255, the district court has discretion to deny an evidentiary
hearing where the motion, files, and records of the case conclusively show that the prisoner is
entitled to no relief.” Id. at 641-642 (citing United States v. Kovic, 830 F.2d 680 (7th Cir. 1987).

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However, an evidentiary hearing is warranted if “the petitioner alleges facts that, if proven, would
entitle him to relief.” Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006) (quoting Bruce
v. United States, 256 F.3d 592, 597 (7th Cir. 2001)) (internal quotations omitted). This Court finds
that an evidentiary hearing is not warranted in this case; the issues can be resolved on the existing
record which conclusively demonstrates that Petitioner is not entitled to the relief she requests.
See Rule 8(a) of Rules Governing Section 2255 Proceedings; Almonacid v. United States, 476 F.3d
518, 521 (7th Cir. 2007).
Respondent correctly points out that Petitioner waived her right to raise certain challenges
to her conviction and sentence by virtue of the Plea Agreement. A waiver of a Petitioner’s right
to collaterally attack her plea or sentence under § 2255 is enforceable “only if it is knowing and
voluntary and if the defendant cannot establish a claim of ineffective assistance of counsel in
connection with negotiating the agreement.” Mason v. United States, 211 F.3d 1065, 1069 (7th
Cir. 2000). Here, Petitioner does not claim the Plea Agreement was involuntary, that the sentencing
court relied on an impermissible factor, that the sentence exceeded the statutory maximum, or that
Counsel was ineffective in negotiating the Plea Agreement. Keller v. United States, 657 F.3d 675,
681 (7th Cir. 2011). Thus, the waiver is valid and enforceable with respect to all claims within its
scope.
Petitioner’s claim that she was denied counsel during discussions with the government and
during the preparation of her testimony against a co-defendant (Ground 2) is within the scope of
the waiver. Petitioner raises a variety of other claims in her brief that are also subject to the waiver
(that the sentence was excessive for a “first-time offender,” that her sentence violates the Second
Amendment to the United States Constitution, and that she was denied equal protection of the
laws).

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However, the waiver does not extend to claims of ineffective assistance of counsel. To
prevail on a claim of ineffective assistance of counsel, Petitioner must show that Counsel’s actions
were objectively unreasonable and that the deficient performance caused prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Petitioner first claims Counsel was ineffective in failing
to argue against the enhancement for trafficking weapons because she only bought the weapons
for her own protection (Ground 1). See U.S.S.G. § 2K2.1. But this argument is belied by the
Stipulation of Facts, the Plea Agreement, and Petitioner’s statements at sentencing. In the
Stipulation, Petitioner agreed that she bought the Romarm Cugir Draco pistol and left it with
Bradford who modified it and that she also bought a Magnum Research Desert Eagle pistol with
the intent to leave it with Bradford. (United States v. Beard-Hawkins, 3:15-CR-30001-SMY-2,
Doc. 125). The Plea Agreement reflects her acknowledgment that she “engaged in the trafficking
of firearms; thus, the Base Offense Level is increased 4 levels.” Finally, during sentencing,
Petitioner stated that she “did help a convicted felon to obtain multiple guns.” “[A]n attorney is
not ineffective for failing to raise a meritless argument.” Washington v. Boughton, 884 F.3d 692,
701 (7th Cir. 2018). Clearly, it would have been frivolous for Counsel to argue the enhancement
did not apply, in the face of Petitioner’s own admissions.
Petitioner’s argument that Counsel was ineffective in failing to argue against an
enhancement for alteration of a weapon (Ground 3) is without merit because there was no
enhancement for the alteration of a weapon. Rather, Petitioner’s base offense level was enhanced
by two levels because the offense involved 3 or more weapons – the two previously identified
pistols and a Jennings Firearm she possessed while being a prohibited person (user of a controlled
substance). See U.S.S.G. § 2K2.1(b)(1)(A).

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Even if the Court were to find that Petitioner’s counsel’s actions were deficient in some
manner, Petitioner has failed to show that “absent counsel’s erroneous advice, [s]he would not
have pled guilty but would have insisted on going to trial.” Hill v. Lockhart, 474 U.S 52, 59 (1985).
Petitioner makes no argument that she would have insisted on going to trial; she argues only that
her sentence would have been reduced to probation.
Conclusion
For the foregoing reasons, Petitioner Delenthegia Beard-Hawkins’ Motion to vacate, set
aside, or correct her sentence under 28 U.S.C. § 2255 is (Doc. 7) is DENIED; the Motion for
Release of Passport (Doc. 27), Motion for Reconsideration (Doc. 28) and Motions for Status
(Docs. 29 and 30) are DENIED as MOOT. This case is DISMISSED with prejudice and the
Clerk of Court is DIRECTED to enter judgment accordingly.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Proceedings instructs the district court to
“issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
A certificate of appealability may issue only if the petitioner “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322,
336 (2003). To meet this requirement, the petitioner must “demonstrate that reasonable jurists
would find the district court’s assessment of his constitutional claims debatable or wrong.” United
States v. Fleming, 676 F.3d 621, 625 (7th Cir. 2012) (quoting Tennard v. Dretke, 542 U.S. 274,
281 (2004)). The petitioner need not show that her appeal will succeed, but must show “something
more than the absence of frivolity” or the existence of mere “good faith” on her part. Miller-El,
537 U.S. at 337, 338. For the foregoing reasons, the Court has determined that Petitioner has not
stated any grounds for relief under § 2255 and that reasonable jurists would not find that conclusion

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debatable or wrong. Thus, Petitioner has not made a substantial showing of the denial of a
constitutional right, and a certificate of appealability will not be issued.

IT IS SO ORDERED.
DATED: March 27, 2020

STACI M. YANDLE
United States District Judge

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