Ewing v. USA

Filing 19

ORDER: Petitioner Antoine Ewing's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1 ) is DENIED and this action is DISMISSED with prejudice. All pending motions are TERMINATED as MOOT. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge Staci M. Yandle on 6/25/2020. (mah)

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

ANTOINE L. EWING,
Petitioner,
vs.
UNITED STATES OF AMERICA
Respondent.

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Case No. 17-cv-1286-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter comes before the Court on Petitioner Antoine Ewing’s Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). For the following reasons, the
Motion is DENIED.
Factual and Procedural Background
On May 3, 2016, a federal grand jury indicted Ewing on one charge of distribution of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). See United States v. Ewing, 16cr-30056, Doc. 13. Ewing pleaded guilty to the charge on June 30, 2016 (Doc. 20). This Court
sentenced him to 151 months imprisonment and 3 years of supervised release on November 15,
2016 (Docs. 28, 31). Ewing did not file a direct appeal. In his § 2255 motion, Ewing raises claims
of ineffective assistance of counsel. He later filed a supplemental brief challenging his career
offender classification.
Standard of Review
An action brought under 28 U.S.C. § 2255 represents an attempt to collaterally attack a
sentence outside of the traditional avenue of appeal and as such relief under Section 2255 “is
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available only in extraordinary situations,” requiring an error of constitutional or jurisdictional
magnitude, or other fundamental defect that resulted in a complete miscarriage of justice. Blake
v. United States, 723 F.3d 870, 878 (7th Cir. 2013). Section 2255 cannot be used as a substitute
for a direct appeal or to re-litigate issues decided on direct appeal. Sandoval v. United States, 574
F.3d 847, 850 (7th Cir. 2009).
The district court is not required to hold an evidentiary hearing if “…the motion, files, and
records of the case conclusively show that the prisoner is entitled to no relief.” Cooper v. United
States, 378 F.3d 638, 641-642 (citing United States v. Kovic, 830 F. 2d 680 (7th Cir. 1987)). Based
on its review of the filings, this Court concludes that the issues in this action can be resolved on
the existing record; an evidentiary hearing is not necessary.
Discussion
Career Offender Designation
Ewing asserts that under Mathis v. United States, 136 U.S. 2243 (2016), his convictions
for domestic battery and unlawful delivery of a controlled substance no longer qualify as predicate
offenses triggering the career offender designation, and that therefore, the Court misapplied the
career offender Sentencing Guidelines provisions.
Sentencing errors that could have raised on direct appeal are generally not cognizable in a
§ 2255 proceeding. See Hawkins v. United States, 706 F.3d 820, 824-25 (7th Cir. 2013) (finding
that even though the district court erroneously classified the petitioner as a career offender, “[t]he
error could not be corrected in a postconviction proceeding”). That includes an erroneous
determination that a defendant is a career offender under the advisory guidelines. Thus, Ewing’s
claim related to the computation of his advisory Sentencing Guidelines range is procedurally
defaulted and his Mathis challenge to his career offender status is denied.

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Ineffective Assistance of Counsel
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right ... to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. This right
encompasses the right to effective assistance of counsel. 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, 68894 (1984); Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014).
To satisfy the first prong of the Strickland test, the petitioner must direct the Court to
specific acts or omissions of his counsel. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009).
The Court must then determine whether, in light of the circumstances, counsel’s performance was
outside the wide range of professionally competent assistance. Id. “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.” Harrington v. Richter, 562 U.S.
86, 105 (2011). 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. The Court should not become a “Monday
morning quarterback.” Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
To satisfy the second prong, the plaintiff must demonstrate ‘a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694. The plaintiff need not show that counsel’s deficient performance

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“more likely than not altered the outcome,” but that the likelihood of a different result was
“substantial, not just conceivable.” Harrington, 562 U.S. at 111-12.
While Ewing raises numerous grounds to support his claims of ineffective assistance of
counsel, 1 his allegations fall into four general categories: (1) Counsel was ineffective in relation
to pretrial matters and case strategy; (2) Counsel was ineffective during the plea process; (3)
Counsel was improperly influenced by the Government; and (4) Counsel should have requested a
mental health evaluation.
Where a petitioner alleges ineffective assistance of counsel based on a failure to investigate
or present additional evidence, he cannot rely on vague allegations and tendentious theories, but
rather bears the burden of presenting with some particularity what additional evidence could have
been uncovered and presented and how this additional information would have had a reasonable
probability of changing the outcome. Hardamon v. United States, 319 F.3d 943, 951 (7th Cir.
2003); see also Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005). Ewing’s bare assertions
that Counsel failed to follow the advice of a jailhouse lawyer, failed to file a motion to dismiss the
charges, and failed to properly investigate his case are without merit. He fails to establish that he
was prejudiced in any way or that Counsel’s actions were outside the range of professionally
competent assistance that an attorney should have provided him.

1

Specifically, Ewing asserts the following claims of ineffective assistance of counsel: “(1) counsel failed
to provide him proper guidance and advice during the plea process; (2) Counsel failed to follow the legal
advice Ewing was given from another prisoner; (3) Counsel was being blackmailed by the Government; (4)
Counsel failed to file a motion to dismiss the charges; (5) Counsel was a former prosecutor and intentionally
ignored Ewing’s constitutional rights; (6) Counsel failed to object to several of the prosecutor’s opening
statements; (7) Counsel failed to effectively investigate and research Ewing’s case; (8) Counsel failed to
effectively investigate the circumstances and status of Ewing’s prior convictions according to law; (9)
Counsel refused to proceed as requested by Ewing; (10) Counsel fail to establish that the Government had
the burden of proof; (11) Counsel failed to advocate for a plea agreement or sentence; and (12) Counsel
was ineffective for failing to seek a mental health evaluation.”
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Ewing has also failed to establish that his counsel failed to conduct an adequate and
independent pretrial investigation. In fact, the record shows otherwise. During the undersigned’s
Rule 11 colloquy at his change of plea hearing, Ewing explicitly stated, under oath, that he was
fully satisfied with his counsel’s representation:
Q.
A.
Q.
A.
Q.
A.

All right. Now, have you been provided with the written charges against you, in
other words, a copy of the Indictment?
Yes, ma’am.
And have you had a chance to review that Indictment and your case in general with
Mr. Schultz?
Yes, ma’am.
Are you fully satisfied with Mr. Schultz’s advice, representation, and counsel as
your attorney?
Yes, ma’am.

(Doc. 34, p. 4,). The Court will not presume that Ewing was lying under oath.
Next, Ewing claims – without any evidence – that Counsel was being improperly
influenced by the Government. Again, Ewing’s allegations are unsupported by actual proof and
therefore lack merit.
Ewing’s final argument is that Counsel was ineffective in failing to seek a mental health
evaluation for him. Ewing reported to probation that he had never been diagnosed with any mental
health condition or received treatment (Doc. 24, at p. 17). And, his responses during the plea
colloquy demonstrated that he fully understood the proceedings and that he was knowingly,
voluntarily and competently entering a guilty plea (Doc. 34, at pp. 6, 8). As such, there was no
basis for Counsel to request a mental health evaluation, and Ewing has offered no objective
extrinsic evidence to support his claim.
For the foregoing reasons, Ewing’s Petition is DENIED and this action is DISMISSED
with prejudice. All pending motions are TERMINATED as MOOT. The Clerk of Court is
DIRECTED to enter judgment accordingly.

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Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), a petitioner does not have the absolute right to appeal a
district court’s denial of his § 2255 motion, instead, he must first request a certificate of
appealability. Miller-El v. Cockrell, 537 U.S. 322, 335 (2003). A petitioner is entitled to a
certificate of appealability only if he can make a substantial showing of the denial of a
constitutional right. Id. at 336; White v. United States, 745 F.3d 834, 835 (7th Cir. 2014). Under
this standard, Ewing must demonstrate that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Ewing has not made a substantial showing that his counsel’s representation was ineffective.
Nor has he demonstrated that reasonable jurists would disagree with the Court’s analysis.
Therefore, the Court declines to certify any issues for appeal.
IT IS SO ORDERED.
DATED: June 25, 2020

STACI M. YANDLE
United States District Judge

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