Williams v. USA
Filing
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OPINION AND ORDER: DENYING AS MOOT Mr. Williams's motion for discovery; DENYING AS MOOT 24 MOTION to Compel; and DENYING 23 MOTION to vacate 2255 filed by Jerome Williams, Jr.. Signed by Judge Robert L Miller, Jr on 9/17/14. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JEROME WILLIAMS, JR.,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent
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CAUSE NO. 3:10-CV-531 RLM
(Arising out of 3:08-CR-72)
OPINION and ORDER
This cause is before the court on Jerome Williams’s petition filed under 28
U.S.C. § 2255 relating to the amended judgment entered in this case on March 15,
2012. The court assumes the reader’s familiarity with the history of this case and
won’t repeat it here. See United States v. Williams, 584 F.3d 714 (7th Cir. 2009);
Williams v. United States, Nos. 3:10-CV-531 & 3:08-CR-72, 2011 WL 2147212
(N.D. Ind. May 31, 2011); Williams v. United States, Nos. 3:10-CV-531 & 3:08-CR72, 2011 WL 5445728 (N.D. Ind. Nov. 9, 2011); United States v. Williams, 486
Fed. App’x 613 (7th Cir. 2012); Williams v. United States, No. 13-2530, 2013 WL
8020940 (7th Cir. Dec. 13, 2013).
Mr. Williams has asserted seven grounds for relief based on his claims that
his court-appointed counsel, Clark Holesinger, provided ineffective assistance at
the October 25, 2011 evidentiary hearing on Mr. Williams’s Section 2255 petition
and at the resentencing hearing that followed on March 15, 2012, and that Yates
French, his court-appointed appellate counsel, provided ineffective assistance on
appeal. The government filed its response, and Mr. Williams has filed a reply.
Each ground for relief will be addressed below.
Standard of Review
The rules governing petitions filed under 28 U.S.C. § 2255 provide that once
a motion is filed,
The motion, together with all the files, records, transcripts, and
correspondence relating to the judgment under attack, shall be
examined promptly by the judge to whom it is assigned. If it plainly
appears from the face of the motion and any annexed exhibits and
the prior proceedings in the case that the movant is not entitled to
relief in the district court, the judge shall make an order for its
summary dismissal and cause the movant to be notified.
Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District
Courts. An examination of the claims of Mr. Williams’s petition confirms that no
hearing is necessary.
A court should grant a Section 2255 petition to vacate, set aside, or correct
a sentence when the petitioner establishes that he was sentenced “in violation of
the Constitution or laws of the United States or that the sentence was in excess
of the maximum authorized by law or is otherwise subject to collateral attack.”
United States v. Hays, 397 F.3d 564, 566 (7th Cir. 2005) (citations and internal
quotations omitted). To prevail on his claims of ineffective assistance of counsel,
Mr. Williams must establish the following two elements:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
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defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary process that renders
the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Ground 1 – Ineffective Assistance of Habeas Counsel
Mr. Williams first claims Mr. Holesinger was ineffective because he failed to
argue that the indictment was flawed. According to Mr. Williams, (1) the law holds
that distribution offenses under 21 U.S.C. § 841(a)(1) “must be separately charged
when alleged to be at different places, times, and with different people with
different drug amounts,” and (2) the indictment was prejudicial in that the
indictment was “duplicitous that affected sentencing exposure to double jeopardy,
shaping of the evidence, and prevented Williams of a defense and caused the
indictment to be fatal varianced and constructively amended.”
The transcript of the evidentiary hearing shows that Mr. Williams is
mistaken: Mr. Holesinger argued that Mr. Williams’s conviction on Count 1 should
be vacated and he should get a new trial. See Status Conf. Tr. (Oct. 25, 2011), pp.
3-5, 7. At the resentencing hearing, Mr. Holesinger reiterated Mr. Williams’s
position that he had been unable to properly defend himself against the lesser
included offenses during trial. See Resentencing Hrg. Tr. (Mar. 15, 2012), pp. 4-5,
10. The record confirms Mr. Holesinger raised the issues currently being cited by
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Mr. Williams; that Mr. Holesinger didn’t succeed on his argument that Mr.
Williams’s conviction should be set aside doesn’t establish that he provided
ineffective assistance. See United States v. Recendiz, 557 F.3d 511, 531 (7th Cir.
2009) (“‘effective’ does not mean successful or without flaw”).
Mr. Williams also claims in Ground 1 that the prosecutor “deliberately
violated the grand jury proceedings pursuant to Fed.R.Crim.P. (6) in which
effected the petit jury,” but his claim in this regard relates to his underlying
conviction, not the resentencing proceedings. The court of appeals specified in its
December 13, 2013 order that Mr. Williams can challenge the amended judgment
entered March 15, 2012, “not the sentence that was the subject of his initial §
2255 [petition].” Williams v. United States, No. 13-2530, 2013 WL 8020940, at *2
(7th Cir. Dec. 13, 2013); see also Suggs v. United States, 705 F.3d 279, 282 (7th
Cir. 2013) (“We have held that [Section 2255] motions after resentencing are not
second or successive when they allege errors made during the resentencing, but
they are second or successive when they challenge the underlying conviction.”).
Mr. Williams’s unsupported statement about alleged “misconduct” by the
prosecutor during the grand jury proceedings isn’t a challenge to the resentencing
judgment and so can’t be raised in this Section 2255 petition.
Ground 2 – Ineffective Assistance of Habeas Counsel
Mr. Williams next contends Mr. Holesinger provided ineffective assistance
because he didn’t object to the presentence investigation report “of the drug
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amounts assessment in which constituted of (a) drug quantities based on direct
contradictory testimony and (b) impermissible averaged numbers to reach
conclusionary estimates,” and because counsel didn’t call Mr. Williams to testify
on his own behalf at the resentencing hearing.
The issue of the drug quantity used in resentencing Mr. Williams – 1.678
kilograms – was resolved against Mr. Williams and affirmed on appeal. See United
States v. Williams, 486 Fed. App’x 613 (7th Cir. 2012). The appellate court
reviewed the bases for the drug quantities contained in the presentence
investigation report and found that those amounts exceeded the 840 gram
threshold of the applicable base offense level. 486 Fed. App’x at 614; see also
U.S.S.G. § 2D1.1(c)(3) [2011 version] (providing a base offense level of 34 for
crimes involving more than 840 grams, but less than 2.8 kilograms, of crack
cocaine). Thus, the law of the case bars Mr. Williams’s claims about the drug
quantity applicable to his case. See Jarrard v. CDI Telecomm., Inc., 408 F.3d 905,
912 (7th Cir. 2005) (The law of the case doctrine “is a rule of practice, based on
the sound policy that, when an issue is once litigated and decided, that should be
the end of the matter.”).
Even if this issue hadn’t been decided on appeal, Mr. Williams is mistaken
when he says Mr. Holesinger didn’t object to the drug amounts in the presentence
investigation report. Mr. Holesinger argued at the resentencing hearing that the
drug quantities being alleged were untrustworthy: he asserted that the drug
amounts were based on unreliable testimony from drug dealers and users and
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prostitutes; he noted that the government had no evidence of any drug buys made
by informants; and he complained that no drugs were available to be tested. See
Resentencing Hrg. Tr. (Mar. 15, 2012), pp. 8-11. The court overruled Mr.
Holesinger’s arguments with respect to the drug quantities, but that doesn’t mean
the arguments weren’t well made, or, as Mr. Williams asserts, not made at all. See
Risner v. United States, Nos. 3:11-CV-106 & 3:08-CR-49, 2012 WL 839208, at *4
(N.D. Ind. Mar. 8, 2012) (“Mr. Risner’s attorney made at least two cognizable
arguments against the obstruction of justice enhancement; that the court did not
accept those arguments does not mean that Mr. Risner was denied the effective
assistance of counsel.”). To succeed on a Strickland claim, Mr. Williams must
show that his counsel’s performance was grossly incompetent to the point that the
attorney was not acting as counsel. Because the record shows that Mr. Holesinger
did raise objections to the drug quantities proposed in the presentence
investigation report, Mr. Williams can’t prevail on his claim that counsel provided
ineffective assistance in this regard.
Mr. Williams also claims Mr. Holesinger was ineffective when he didn’t call
Mr. Williams to testify at the resentencing hearing. While Mr. Holesinger didn’t call
Mr. Williams as a witness, Mr. Williams was given a chance to, and did in fact,
speak on his own behalf. See Resentencing Hrg. Tr. (Mar. 15, 2012), pp. 12-17.
Thus, Mr. Williams can’t establish the second element of Strickland, i.e., that his
defense was prejudiced. His claim of ineffective assistance of counsel in this
instance is without merit.
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Grounds 3 & 5 – Ineffective Assistance of Habeas Counsel
Ground 3 contains Mr. Williams’s claims that Mr. Holesinger was ineffective
because he didn’t object that Mr. Williams “had received a improper jury
instruction on ‘cocaine base,’ that it simply means ‘crack’ for the purpose of the
conviction on the 50 grams and to be sentenced on a enhanced penalty §
841(b)(1)(A)iii” and didn’t object that the jury wasn’t instructed “that the chemical
basic form free base and coca paste, also, afford Williams a test of the alleged
substance to contradict the testimony of the unreliable witnesses.” In Ground 5,
Mr. Williams contends Mr. Holesinger’s representation was “deficient and
prejudicial” because he didn’t object that Mr. Williams’s “Sixth Amendment was
violated because he [] was deprived to face his accuser that alleged he sold 50
grams or more of crack cocaine in furtherance of a firearm in violation of §
841(a)(1) and § 924(c).”
Mr. Williams can’t raise these issues. His arguments relate to alleged errors
at trial, not resentencing. The court of appeals specified in its December 13, 2013
order that Mr. Williams can challenge the amended judgment entered March 15,
2012, “not the sentence that was the subject of his initial § 2255 [petition].”
Williams v. United States, No. 13-2530, 2013 WL 8020940, at *2 (7th Cir. Dec. 13,
2013); see also Dahler v. United States, 259 F.3d 763, 765 (7th Cir. 2001) (“[A]
belated challenge to events that precede a resentencing must be treated as a
collateral attack on the original conviction and sentence, rather than as an initial
challenge to the latest sentence.”). Because Mr. Williams’s claims in Grounds 3
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and 5 relate to his trial (issues that could have been, but weren’t, raised in the
appeal of his conviction and his first Section 2255 petition), he is barred from
raising them as a challenge to his resentencing judgment.
Grounds 4 – Ineffective Assistance of Counsel on Appeal
Mr. Williams claims in Ground 4 that Mr. Holesinger provided ineffective
assistance by not requesting “a certificate of appealability on all of the denied
claims on § 2255 petition” and not obtaining clarification on which claim was
granted before filing a notice of appeal.
Mr. Holesinger filed a Notice of Appeal on March 23, 2012 of the “Amended
Judgment of a Conviction and Sentence arising from the 28 U.S.C. § 2255 entered
on March 15, 2012.” On June 5, before briefing began in Mr. Williams’ appeal, the
court of appeals appointed substitute appellate counsel to replace Mr. Holesinger
as counsel for Mr. Williams. Thus, while Mr. Holesinger didn’t request that a
certificate of appealability be issued, he timely filed a notice of appeal. Mr.
Williams hasn’t shown – nor can he show – that Mr. Holesinger’s performance in
this regard prejudiced him in any way: substitute appellate counsel was appointed
and his appeal went forward.
Grounds 6 – Ineffective Assistance of Counsel on Appeal
Ground 6 contains Mr. Williams’s claim that appellate counsel Yates French
“was deficient and prejudicial on appeal” because Mr. French (1) stated that “the
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appeals court was without jurisdiction to hear ground 2 claim and then
abandoned the issue dealing with the duplicitous indictment,” and (2) failed “to
argue that the duplicitous indictment caused a adverse affect in which prevented
review, allowed the government to shape the evidence and caused the indictment
to be fatal varianced and constructively amended.”
Mr. Williams complains that Mr. French didn’t present the issues for appeal
that Mr. Williams believes he should have. Mr. Williams submits his own affidavit
statement that he told Mr. French what issues to raise and what arguments to
make on appeal and also asked that Mr. French file “a motion with the appeals
court and the district court in a 60(b) motion to request that ground (2) and (6) be
adjudicated and request a certificate of appealability on all issues that was
denied.” Pet’r Memo., Williams Aff., ¶ 4.
Mr. Williams provides a copy of Mr. French’s response to Mr. Williams’s
requests and suggestions regarding his appeal. In a letter dated September 5,
2012, Mr. French advised Mr. Williams that
. . . I do not think filing your motion or advancing the arguments you
have included in your letter is advisable or appropriate. I think there
are some legal errors in the arguments, especially your claims that
either the district or appellate courts lack (or lacked) jurisdiction over
your case. Filing your motion or making the arguments you suggest
will likely aggravate the appeals court and hurt, not help, your
appeal. . . . I have read your draft argument that the district court
lacked jurisdiction to resentence you. I did not see any cases cited for
the proposition that a district court lacks jurisdiction to resentence
a defendant after a § 2255 petition is filed. And the law is clear that
resentencing is an appropriate remedy for cases such as yours. . . .
For all these reasons, I will not be able to file your Motion to Remand
for Findings of Fact and Conclusions of Law or to make the
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arguments you have drafted in your letter. What I will do is draft the
best appellate brief I can and argue on your behalf to the best of my
ability. Please respond in writing by Monday, September 17, 2012, if
you understand and accept that I will not be filing your motion or
making your arguments.
Pet’r Memo., Exh. D. Mr. Williams’s response to Mr. French’s request is found at
the bottom of Mr. French’s letter where Mr. Williams hand wrote the following:
“Yes, I understand and accept what your saying. Jerome Williams, Jr.”
An attorney isn’t required to disregard his own professional training and
experience just because his client demands that counsel raise certain issues or
make certain arguments. An attorney’s duty isn’t to raise every conceivable
defense or argument, for a “lawyer has an obligation to be truthful and forthright
with the court, [and] he has no duty to make a frivolous argument.” Fuller v.
United States, 398 F.3d 644, 652 (7th Cir. 2005) (quotation removed). Too, the
court of appeals has told appellate attorneys to choose issues carefully rather than
relying on a barrage of issues; a large number of issues implies that counsel
doesn’t think any of them are strong enough to prevail on their own. Dynegy
Marketing and Trade v. Multitut Corp., 648 F.3d 506, 513 (7th Cir. 2011). “It is
all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence.” Strickland v. Washington, 466 U.S. 668, 689
(1984).
The “court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged
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action might be considered sound [appellate] strategy.” Jones v. Page, 76 F.3d
831, 840 (7th Cir. 1996) (quoting Strickland v. Washington, 466 U.S. 668, 689
(1984)). Mr. Williams hasn’t overcome that presumption. The evidence Mr.
Williams submitted shows that his counsel reviewed and considered the issues
and arguments advanced by Mr. Williams and determined that those arguments
contained legal errors that made them inappropriate for appeal. Mr. French
reported to Mr. Williams that (i) no cases support Mr. Williams’s assertion that the
court lacked jurisdiction to resentence him based on the claims of his Section
2255 petition; (ii) the court of appeals didn’t lack jurisdiction to consider his
appeal even if, as Mr. Williams believes, this court didn’t make findings of fact and
conclusions of law on Ground 2 of his initial Section 2255 petition; and (iii) “the
law is clear that resentencing is an appropriate remedy for cases such as yours.”
Mr. French also told Mr. Williams, citing United States v. Kelly, 519 F.3d 355 (7th
Cir. 2008), that “the lesser included offense of violating 21 U.S.C. § 841(a) by
distributing any cocaine base is included in an allegation that the defendant
violated 21 U.S.C. § 841(a) by distributing a specific amount of cocaine base”
(emphasis in original). That Mr. French rejected the legal arguments and issues
Mr. Williams proposed for appeal doesn’t establish that Mr. French provided
ineffective assistance. “It is well-established that appellate attorneys do not have
to present losing arguments to provide constitutionally effective assistance of
counsel.” Woods v. United States, No. 09 C 4925, 2009 WL 3787904, at *7 (N.D.
Ill. Nov. 12, 2009).
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Mr. Williams hasn’t demonstrated that counsel failed to pursue a legitimate
strategy on appeal nor has he established that “there is a strong probability that
but for counsel’s unprofessional errors, the result of the proceeding would have
been different, meaning a probability sufficient to undermine confidence in the
outcome.” Hoffman v. United States, No. 3:09-CV-106, 2009 WL 1285906, at *3
(N.D. Ind. May 4, 2009). Mr. Williams isn’t entitled to the relief he seeks on
Ground 6 of his petition.
Ground 7 – Resentencing Violated Supreme Court’s Rulings in
Alleyne v. United States, 133 S. Ct. 2151 (2013), and
Berger v. United States, 295 U.S. 78 (1935)
Mr. Williams presents the following issues in Ground 7: “Whether Alleyne
constitutes a constructive amendment to Williams indictment when: (1) his
statutory minimum was enhanced to a mandatory life pursuant to § 841(b)(1)(A)
for 50 or more grams of crack cocaine when no rational jury could find him guilty
of the grand jury charge, and (2) whether the prosecutor’s misconduct violated
Williams due process to be tried on the indictment in which deprived him at
sentencing pursuant to Berger.”
Mr. Williams first claims that the Supreme Court held in Alleyne v. United
States, 133 S. Ct. 2151 (2013), that his resentencing was unconstitutional
“because any facts that increase Williams mandatory minimum sentence is a
element and must be presented to the grand jury then to the jury and found
beyond a reasonable doubt.” Pet’r Memo., at 32. He claims that “when the
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government failed its burden of proof and not establish the 50 or more grams,
Williams is actually innocent of the charge in which the grand jury returned.”
The Supreme Court in Alleyne v. United States held that any fact that
increases the mandatory minimum sentence must be submitted to the jury. 133
S. Ct. at 2161-2163. The defendant in that case was found guilty of violating 18
U.S.C. § 924(c)(1)(A), which carried a statutory minimum sentence of 5 years. The
sentencing court found that the defendant had “brandished” his weapon, a finding
not made by the jury, which resulted in an increase of the statutory minimum
sentence to 7 years. The Supreme Court concluded that the question of whether
the defendant had “brandished” his weapon was one for the jury, not the court,
because that finding increased the minimum sentence: “Mandatory minimum
sentences increase the penalty for a crime. It follows, then, that any fact that
increases the mandatory minimum is an ‘element’ that must be submitted to the
jury.” 133 S. Ct. at 1255.
Alleyne doesn’t apply here because Mr. Williams’s sentencing range was
reduced at resentencing, not “enhanced to life” as he suggests. Mr. Williams was
found guilty in November 2008 of violating 21 U.S.C. § 841(a)(1) and was
sentenced to life imprisonment under 21 U.S.C. § 841(b)(1)(A), which provides for
a sentence of 20 years to life if the crime was committed by the defendant “after
a prior conviction for a felony drug offense [that] has become final.” At the time of
his initial sentencing in April 2009, Mr. Williams had two prior drug-related felony
convictions. In March 2012, Mr. Williams’s sentence was reduced from a life term
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to 30 years under 21 U.S.C. § 841(b)(1)(C), which provides for a maximum
sentence of 30 years if the defendant commits the crime “after a prior conviction
for a felony drug offense [that] has become final.” At the time of the resentencing
in 2012, Mr. Williams had two prior drug-related felony convictions. The question
of an increase in the statutory minimum sentence didn’t come into play in Mr.
Williams’s case, and he can’t prevail on his claim that his resentencing was
unconstitutional under Alleyne v. United States.
Mr. Williams also claims his due process rights were violated when the
prosecutor misled “the grand jury to indict Williams on 50 grams or more . . . by
manufacturing jurisdiction when he combinding uncharged § 841(a)(1) offense
that is constituted by congress to be indicted separately, . . . thus confused the
grant jury. On top of this misconduct, the prosecutor never had any evidence wire
taps, audio, video recordings, control buys, drugs, or guns, to even bring to this
court and show a crime happened.” Pet’r Memo., at 33.
Mr. Williams’s claims in this instance relate to alleged errors at trial, not
resentencing. As already noted, the court of appeals specified that Mr. Williams
could challenge the amended judgment entered March 15, 2012, “not the sentence
that was the subject of his initial § 2255 [petition].” Williams v. United States, No.
13-2530, 2013 WL 8020940, at *2 (7th Cir. Dec. 13, 2013); see also Suggs v.
United States, 705 F.3d 279, 282 (7th Cir. 2013) (“We have held that [Section
2255] motions after resentencing are not second or successive when they allege
errors made during the resentencing, but they are second or successive when they
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challenge the underlying conviction.”). Because Mr. Williams’s second claim in
Ground 7 relates to his trial, he can’t raise it as a challenge to his resentencing
judgment and so isn’t entitled to the relief he seeks.
Conclusion
Mr. Williams hasn’t demonstrated any meritorious claims of ineffective
assistance of counsel: he hasn’t shown that his counsel “made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth
Amendment,” nor has he shown any errors by counsel that were so serious that
they rendered the result in this court or the court of appeals unreliable. Strickland
v. Washington, 466 U.S. at 687. According, the court
(1) DENIES as moot Mr. Williams’s motion for discovery [docket
# 240];
(2) DENIES as moot Mr. Williams’s motion to compel judgment
[docket # 250]; and
(3) DENIES Mr. Williams’s petition filed pursuant to 28 U.S.C.
§ 2255 [docket # 237].
SO ORDERED.
ENTERED:
September 17, 2014
/s/ Robert L. Miller, Jr.
Judge, United States District Court
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cc:
J. Williams
AUSA Schmid
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