ANDERSON v. USA

Filing 20

ENTRY discussing motion for relief pursuant to 28:2255 and denying certificate of appealability. Signed by Judge Tanya Walton Pratt on 6/16/2015 (dist made)(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DENNY RAY ANDERSON,

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Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

Case No. 1:13-cv-01734-TWP-MJD

Entry Discussing Motion for Relief Pursuant to 28 U.S.C. § 2255
and Denying Certificate of Appealability
This matter is before the Court on Motion to Vacate, Set Sside or Correct Sentence filed
by Petitioner Denny Ray Anderson (“Mr. Anderson”). For the reasons explained in this Entry, the
motion of for relief pursuant to 28 U.S.C. § 2255 must be DENIED. In addition, the Court finds
that a certificate of appealability should not issue.
I. Background
On October 19, 2011, Mr. Anderson was charged by Indictment with being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
On August 16, 2012, Mr. Anderson filed a Petition to Enter a Plea of Guilty in Case No.
1:11-cr-00201-TWP-TAB. On that same day, the parties submitted to the Court a written Plea
Agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A), and (C). That agreement
provided that Mr. Anderson would plead guilty to the charge alleged in the Indictment and that he
would be sentenced to a term of imprisonment of 180 months. The Plea Agreement further
provided that in exchange for concessions made by the United States, Mr. Anderson expressly
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waived his right to a direct appeal of the conviction and sentence imposed. Crim. Dkt. 51; Plea
Agreement ¶ 8. Mr. Anderson did not, however, waive his right to collaterally attack the conviction
and sentence via 28 U.S.C. § 2255.
On August 27, 2012, Mr. Anderson appeared before the Court for a change of plea hearing.
At that hearing, the Court found that Mr. Anderson’s plea of guilty was voluntarily and knowingly
made and that a factual basis for the plea was established. The Court then accepted Mr. Anderson’s
plea and adjudged him guilty as charged.
On November 1, 2012, a sentencing hearing was conducted. At the sentencing hearing, the
Court, in conformity with the binding Plea Agreement, sentenced Mr. Anderson to a term of
imprisonment of 180 months to be followed by five years of supervised release. Mr. Anderson was
also fined $500 and assessed the mandatory assessment of $100. Judgment of conviction was
entered on November 5, 2012.
On October 28, 2013, Mr. Anderson filed a motion for post-conviction relief pursuant to
28 U.S.C. § 2255. Mr. Anderson requests an evidentiary hearing, the appointment of counsel and
that his guilty plea and sentence be vacated. The United States responded and Mr. Anderson filed
a reply.
II. Ineffective Assistance of Counsel
The Court must grant a § 2255 motion when a petitioner’s “sentence was imposed in
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However, “[h]abeas
corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations.” Prewitt v. U.S., 83
F.3d 812, 816 (7th Cir. 1996). Relief under § 2255 is available only if an error is “constitutional,
jurisdictional, or is a fundamental defect which inherently results in a complete miscarriage of
justice.” Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997) (quotations omitted). It is

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appropriate 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. § 2255.
Mr. Anderson claims that he is entitled to relief under § 2255 because his counsel failed to
provide effective assistance as guaranteed by the Sixth Amendment. 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 defense.” 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); Stitts v. Wilson, 713 F.3d 887, 891 (7th Cir. 2013) (petitioner has burden of
demonstrating both deficient performance and prejudice). 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 consider whether
in light of all of the circumstances counsel’s performance was outside the wide range of
professionally competent assistance. Id.
Mr. Anderson’s motion to vacate argues that his “plea was not intelligent, knowing, or
voluntary” because he was “suffering mental problems.” He claims that his counsel was ineffective
for not raising these issues. Next, Mr. Anderson asserts that his counsel was ineffective for not
seeking a more lenient sentence based on Mr. Anderson’s “diminished mental capacity.” Finally,

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Mr. Anderson claims that his sentence amounts to cruel and unusual punishment because he is not
getting adequate psychological treatment or care in prison.
A. Competency
Mr. Anderson claims that he was suffering mental problems such as paranoid
schizophrenia, delusions, and hallucinations before, during, and after he appeared in court. Mr.
Anderson argues that his attorney should not have permitted him to plead guilty because she knew
of his mental incapacity. This claim is based on the theory that Mr. Anderson was not competent
to stand trial and that his attorney should have sought a competency examination prior to allowing
him to plead guilty.
A defendant is competent to stand trial if he has “sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding” and he has “a factual understanding
of the proceedings against him.” Warren v. Baenen, 712 F.3d 1090 (7th Cir. 2013) (internal
quotations omitted). To show prejudice under Strickland in relation to this type of claim, the
movant must show that there was “a reasonable probability the defendant would have been found
unfit had a [competency] hearing been held.” Warren, 712 F.3d 1090 (internal quotation omitted).
Mr. Anderson has not and cannot make this showing.
The Court was well informed regarding Mr. Anderson’s mental health problems during the
course of the trial. At the change of plea hearing the following exchange occurred:
THE COURT: Have you been treated recently for any mental illness or
addictions to alcohol or narcotic drugs of any kind?
THE DEFENDANT: I’m on psychotropic drugs right now.
THE COURT: Okay. What’s your diagnosis?
THE DEFENDANT: Paranoid schizophrenia and a few other things. I don’t
know exactly everything.

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THE COURT: So, are you currently under the influence of any drugs or
medication?
THE DEFENDANT: Medication.
THE COURT: Okay. Does your medication affect your ability to
understand today’s proceedings?
THE DEFENDANT: Not that I know of, Your Honor.
THE COURT: Okay. So, right now you’re thinking clearly and you
understand what’s going on?
THE DEFENDANT: Right. I mean, as good as I can, yeah.
Case No. 1:11-cr-00201-TWP-TAB, Dkt. 75 at p. 5. In addition to this exchange, Mr. Anderson
answered the Court’s questions in a manner which reflected that he understood the proceedings. It
is also clear from the record that Mr. Anderson was able to consult with his lawyer with a
reasonable degree of rational understanding and that he had a factual understanding of the
proceedings against him. At the sentencing hearing his counsel stated: “And, you know, in my
interaction with Mr. Anderson, I think that it’s pretty obvious that he thinks well when he’s on his
medication . . . .” Sent. Trans., Id. Dkt. 72 at p. 16. Counsel explained further:
Even in the time that I have spent with him, when he’s moved from one cell
block to another -- which seems to be a problem in the jail here, they move him,
and then for a period of time he doesn’t have the right medication. And when I
come to see him, he can’t focus on what we’re talking about.
Now, after he’s been in the new cell block and they’ve got his medication
back, he’s a whole lot better. But, it’s pretty clear to me that when he’s not
medicated, he has an extremely difficult time of conforming his behavior to what,
you know, the Court would expect.
Sent. Trans., Dkt. 72 at p. 18. Mr. Anderson received medication while at the Marion County Jail
that allowed him to consult with his lawyer. He demonstrated at both the change of plea hearing
and sentencing hearing that he understood the proceedings against him. Under these
circumstances, this Court would not have found Mr. Anderson unfit had a competency hearing
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been held. Under these circumstances, counsel cannot be found ineffective for failing to seek a
competency hearing.
B. The Guilty Plea
The Supreme Court has recognized that defendants are entitled to the effective assistance
of competent counsel during plea negotiations. See Lafler v. Cooper, 132 S.Ct. 1376 (2012). Mr.
Anderson’s second specification of ineffective assistance of counsel is that his guilty plea was not
knowingly and voluntarily entered and that his trial counsel should have raised this issue. This
claim is uniformly without merit.
As a preliminary matter, Mr. Anderson’s claim that his plea of guilty was not knowing and
voluntary conflicts with the representations he made to the Court in his Petition to Enter a Plea of
Guilty, his written Plea Agreement, and his colloquy with the Court at his change of plea hearing.
In the Petition to Enter a Plea of Guilty, Mr. Anderson represented to the Court that he had
“read and discussed [the Indictment] with [his] attorney and believe[d] and [felt] that [he]
under[stood] every accusation made against [him] in this Case.” Case No. 1:11-cr-00201-TWPTAB; Dkt. 50; Petition to Enter a Plea of Guilty ¶ 4. Mr. Anderson further represented that his
attorney “informed, counseled and advised [him] as to the nature and cause of every accusation
against [him] and as to any possible defenses [he] may have in this case.” Id. ¶ 5. Mr. Anderson
stated that he “believe[d] and [felt] that [his] attorney had done all that anyone could to counsel
and assist [him] and that he now under[stood] the proceedings in this case against [him].” Id. ¶ 12.
In addition, Anderson asserted that he “offer[ed] [his] plea of ‘Guilty’ freely and
voluntarily and of [his] own accord.” Id. ¶ 14. And that he made “no claim of innocence.” Id. ¶ 13.
In the Certificate of Counsel attachment to Mr. Anderson’s guilty plea petition, his counsel
represented to the Court her “opinion” that his plea of guilty was “offered . . . voluntarily and

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understandingly” and that “[t]o the best of her knowledge and belief each statement set forth in the
[Petition to Enter a Plea of Guilty] is in all respects accurate and true.”
This Court expressly found that Mr. Anderson’s plea was knowingly and voluntarily
entered. “The presumption of verity [of a defendant’s statements in pleading guilty] is overcome
only if the defendant ‘satisfies a heavy burden of persuasion.’” United States v. Logan, 244 F.3d
553, 558 (7th Cir. 2001). Mr. Anderson’s self-serving statements of a lack of understanding cannot
undermine or place into question the district court’s findings at the change of plea hearing. See
United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991).
C. Presentence Investigation Report
Mr. Anderson argues that his counsel should have objected to unidentified information in
his Presentence Investigation Report and sought a downward departure based on his diminished
mental capacity. This argument is without merit for multiple reasons. First, Mr. Anderson received
the most lenient sentence possible, the statutory minimum. His sentence was below the advisory
guideline range. The sentence was the result of the Plea Agreement ably negotiated for Mr.
Anderson by his counsel and counsel’s persuasive arguments in favor of the below guideline
sentence. One of these arguments was based on Mr. Anderson’s history of mental illness and his
difficulty in obtaining his needed medications. Given the defendant’s extensive criminal history,
a below guideline sentence was atypical. No argument could be presented that Mr. Anderson’s
counsel could have obtained a better result for Mr. Anderson. Second, it is true that a defense
attorney has a responsibility to reasonably investigate the circumstances of the case against his
client. See Bruce v. United States, 256 F.3d 592, 587-89 (7th Cir. 2001). But, the mere allegation
that a lawyer failed to conduct an adequate investigation, without particulars as to what was not
done that should have been, is insufficient to warrant post-conviction relief. See e.g., United States

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ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987). Although Mr. Anderson argues
that his counsel failed him, he has not demonstrated how or in what respect his attorney’s
investigation of the facts included in his presentence report was inadequate, or demonstrated what
evidence could have been presented (but was not) that would likely have changed his sentence.
Third, the sentencing transcript reflects that Mr. Anderson’s counsel did investigate his prior
criminal history and made multiple objections which were considered by this Court. Mr. Anderson
has demonstrated neither deficient performance nor any prejudice with respect to this claim. Mr.
Anderson’s claim of ineffective advocacy fails because the record demonstrates that a vigorous
and competent defense was presented on his behalf. No relief is warranted on this basis.
D. Eighth Amendment Claim
Mr. Anderson claims that his sentence violates his Eighth Amendment right to be free from
cruel and unusual punishment because he is not receiving adequate or sufficient psychological
treatment for his mental illness and cancer. This conditions of confinement claim is outside the
scope of a motion pursuant to § 2255. If Mr. Anderson believes that his Eighth Amendment rights
are being violated based on the medical care he is receiving (or not receiving) he may pursue this
claim in a new civil rights action. No relief pursuant to § 2255 is warranted on this basis.
III. Evidentiary Hearing
Mr. Anderson suggests that he is entitled to an evidentiary hearing on the issues raised in
this § 2255 motion. “A § 2255 petitioner is entitled to an evidentiary hearing on his claim where
he alleges facts that, if true, would entitle him to relief.” Lafuente v. United States, 617 F.3d 944,
946 (7th Cir. 2010) (citing Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009); Hall v.
United States, 371 F.3d 969, 972 (7th Cir. 2004)). On the other hand, a hearing “is not required
when ‘the files and records of the case conclusively show that the prisoner is entitled to no relief.’”

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Id. (quoting 28 U.S.C. § 2255(b)). For the reasons explained above, the record in this case
conclusively establishes that Mr. Anderson is not entitled to relief making any such hearing
unnecessary. Therefore, his request for an evidentiary hearing is denied. These same reasons
dictate the conclusion that the appointment of counsel is not necessary. Accordingly, any request
for the assistance of counsel in pursing this § 2255 motion is denied.
IV. Conclusion
For the reasons explained in this Entry, Mr. Anderson has failed to show that he is entitled
to the relief he seeks and his motion for relief pursuant to 28 U.S.C. § 2255 must be DENIED.
Accordingly, the request for an evidentiary hearing is also DENIED. Judgment consistent with
this Entry shall now issue.
This Entry and the accompanying Judgment shall also be entered on the docket in the
underlying criminal action, Case No. 1:11-cr-00201-TWP-TAB-1.
V. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§ 2255 Proceedings, and 28 U.S.C. § 2253(c), the Court finds that Mr. Anderson has failed to
show that reasonable jurists would find this Court’s “assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a
certificate of appealability.
IT IS SO ORDERED.
Date: 6/16/2015

Note to Clerk: Processing this document requires actions in addition to docketing and distribution. This
Entry and the accompanying Judgment shall also be entered on the docket in the underlying criminal action,
1:11-cr-201-TWP-TAB-1.

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Distribution:
DENNY RAY ANDERSON
10387-028
TERRE HAUTE - USP
TERRE HAUTE U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
Matthew P. Brookman
UNITED STATES ATTORNEY'S OFFICE - EV
Email: [e-mail]

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