RICHMOND v. USA

Filing 31

ENTRY DENYING AMENDED MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY - The records and file in this action show that Richmond is not entitled to the relief he seeks. Accordingly, his amended motion for relief pursuant to § 2255 (Dkt. 4 ) is DENIED, and this action must be dismissed with prejudice. Judgment consistent with this Entry shall now issue. This Entry shall also be docketed under the underlying criminal action, No. 1:12-cr-96-TWP -MJD-01. 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 Richmond has failed to show that reasonable jurists would find "it deba table whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore DENIES a certificate of appealability. (See Order.) Copy to Petitioner via U.S. Mail. Signed by Judge Tanya Walton Pratt on 6/5/2017.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ERIC Q. RICHMOND,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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ENTRY DENYING AMENDED MOTION FOR RELIEF PURSUANT TO
28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY
This matter is before the Court on the Amended Motion to Vacate, Set Aside or Correct
Sentence pursuant to 28 U.S.C. § 2255 (Dkt. 4), filed by Petitioner Eric Richmond (“Richmond”).
For the reasons explained in this Entry, the Amended Motion for Relief is denied and the action
dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not
issue.
I. THE § 2255 MOTION
A.

Background
On June 20, 2012, Richmond was charged in criminal docket No. 1:12-cr-96-TWP-MJD-

01 (“Crim. Dkt.”) with one count of possession with intent to distribute 100 grams or more of
heroin, in violation of 21 U.S.C. § 841(a)(1). The matter was set for trial by jury on May 6, 2013,
and Richmond filed a Motion to Suppress on April 2, 2013. (Crim. Dkt. 37.) Specifically,
Richmond sought to suppress all evidence obtained from a search of his vehicle during a routine
traffic stop and any statements that he made prior to being read his Miranda rights. Because of
the close proximity to the trial date, the Court ordered expedited briefing on the Motion to
Suppress. Richmond challenged the factual basis relied upon by police officers to support probable

cause for the search of his vehicle. In his motion to suppress, Richmond did not contest the fact
that he committed one or more traffic violations prior to being stopped by a police officer, rather,
he argued the evidence seized from his vehicle should be suppressed because it was obtained
during a warrantless search and there was no probable cause for the search, thus violating the
Fourth Amendment to the United States Constitution. In particular, Richmond denied that there
was an odor of marijuana in his vehicle at the time of the stop, that he possessed any marijuana at
the time of the stop, that he or anyone else had smoked marijuana in his car the day of the stop, or
that he admitted to smoking marijuana prior to the stop. However, the videotaped evidence of the
stop showed otherwise.
Following the denial of his Motion to Suppress on April 25, 2013 (Crim. Dkt. 47),
Richmond filed a Petition to Enter a Plea of Guilty that same date, without the benefit of a plea
agreement. A hearing on the Petition to change his plea to guilty was conducted on August 14,
2013. Richmond was placed under oath and examined concerning his Petition to Enter a Plea of
Guilty. The Court determined that Richmond was competent to enter a plea of guilty and that his
plea was made knowingly and voluntarily. At the conclusion of the hearing, the plea of guilty was
accepted and Richmond was adjudged guilty.
The Court then proceeded to impose sentence. During the sentencing hearing, Richmond’s
counsel argued successfully that the Court should not apply a two level increase for the obstruction
of justice adjustment, as argued by the Government and recommended by the probation officer.
The Court, however, did not apply the two level decrease for acceptance of responsibility under
U.S.S.G § 3E1.1(a), finding that Richmond had falsely denied or frivolously contested relevant
conduct that the court determined to be true, inconsistent with acceptance of responsibility. See
Application note 1(A). The Court sentenced Richmond within the advisory guideline range to 125

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months, which was formally entered on the clerk’s docket on August 20, 2013.
Richmond did not appeal his conviction or his sentence; however, on April 21, 2016,
Richmond’s sentence was reduced to 120 months pursuant to 18 U.S.C. § 3582(c)(2). Richmond
now seeks relief pursuant to 28 U.S.C. § 2255.
B.

Legal Standard
A § 2255 motion is the presumptive means by which a federal prisoner can challenge his

conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). The parameters of
relief pursuant to § 2255 were reviewed in Young v. United States, 124 F.3d 794, 796 (7th Cir.
1997):
Section 2255 is not a way to advance arguments that could have been presented
earlier--especially not when the arguments rest entirely on a statute. See Reed v.
Farley, 512 U.S. 339, 114 S. Ct. 2291, 129 L.Ed.2d 277 (1994). Although sec. 2255
para.1 permits a collateral attack on the ground that “the sentence was imposed in
violation of the Constitution or laws of the United States,” only a small portion of
statutory claims demonstrate that the sentence or conviction is itself a violation of
law. The error must be so fundamental that a “complete miscarriage of justice” has
occurred. Reed, 512 U.S. at 348, quoting from Hill v. United States, 368 U.S. 424,
428, 82 S. Ct. 468, 7 L.Ed.2d 417 (1962). Other “non-constitutional errors which
could have been raised on appeal but were not, are barred on collateral
review--regardless of cause and prejudice.” Bontkowski v. United States, 850 F.2d
306, 313 (7th Cir. 1988).
Thus, relief pursuant to § 2255 is limited to an error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in a complete miscarriage of justice.
Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991).
In order for a plea to be valid, it must be made voluntarily, knowingly, and intelligently.
United States v. Hays, 397 F.3d 564, 567 (7th Cir. 2005) (citing United States v. Gilliam, 255 F.3d
428, 432-33 (7th Cir. 2001)).

A plea is voluntary when it is not induced by threats or

misrepresentations, and the defendant is made aware of the direct consequences of the plea. United

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States v. Jordan, 870 F.2d 1310, 1317 (7th Cir. 1989) (citing Brady v. United States, 397 U.S. 742,
755 (1970)).
II. DISCUSSION
Richmond presents two claims in his § 2255 motion. In claim one, he contends that his
counsel was ineffective for failing to advise him of his right to timely plead guilty in exchange for
acceptance of responsibility and for unreasonably delaying the proceedings. In his second claim,
Richmond argues his counsel was ineffective when he failed to investigate and present viable
evidence to support his motion to suppress. In a supplement to his § 2255, Richmond asserts that
his plea was unknowing, involuntary and unintelligible and he would not have pled guilty or
waived his right to appeal if certain claims had been presented. (Dkt. 21.) However, Richmond
does not state what these claims are or how they would have changed the outcome of his case.
As an initial matter, the Court notes that Richmond’s guilty plea was entered in open court
and only after full compliance with the requirements of Rule 11 of the Federal Rules of Criminal
Procedure. Richmond acknowledged having received a copy of the Indictment, having discussed
the charge with his attorney, and being guilty of the offense to which he was pleading guilty. His
statements are binding in this proceeding. Hugi v. United States, 164 F.3d 378, 381 (7th Cir.
1999). “[V]oluntary responses made by a defendant under oath before an examining judge [are]
binding.” United States v. Ellison, 835 F.2d 687, 693 (7th Cir. 1987). The Court explicitly found
that Richmond was “fully competent and capable of entering an informed plea [and] that he [was]
aware of the nature of the charges and the consequences of the plea.” (Crim. Dkt. 64 at 17.) The
Court further found that: “The plea of guilty is a knowing and voluntary plea supported by an
independent basis in fact, which contains each of the essential elements of the offense.” (Id.)

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Richmond’s guilty plea was entered voluntarily, knowingly, and intelligently. Richmond’s guilty
plea was therefore valid. His contentions otherwise are rejected.
The other focus of Richmond’s § 2255 motion is that he was denied the effective assistance
of counsel. The Sixth Amendment entitles criminal defendants to the effective assistance of
counsel—that is, representation that does not fall below an objective standard of reasonableness
in light of prevailing professional norms. Bobby v. Van Hook, 130 S. Ct. 13, 16 (2009). The
governing Supreme Court case for resolving an ineffective assistance claim is Strickland v.
Washington, 466 U.S. 668 (1984). To establish ineffective assistance of counsel under Strickland,
the petitioner must show that counsel’s performance was deficient and that the deficient
performance prejudiced him. Id. In particular, to establish that “counsel’s assistance was so
defective as to require reversal” of a conviction or a sentence, a petitioner must make two
showings: (1) deficient performance that (2) prejudiced his defense. Id., at 687.
With respect to the first prong, “[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510, 521
(2003) (quoting Strickland, 466 U.S. at 688). In determining whether counsel’s performance was
constitutionally deficient, the court’s review of counsel’s performance is highly deferential, and
the petitioner must overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir. 2004).
With respect to the prejudice requirement, the petitioner must show that “there is 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; see also Benefiel v. Davis, 357 F.3d 655, 661 (7th Cir.
2004).

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Richmond devotes much effort to show that the traffic stop was invalid and that the
evidence from it should have been ordered suppressed. For the first time, in his § 2255 motion,
Richmond argues his counsel should have challenged the constitutionality of certain Indiana traffic
laws. The motion to suppress was denied, in part, because the Court found the traffic stop to be
valid and there was a video recording which substantiated the officers’ version of events. The
Court determines that a challenge of the constitutionality of Indiana’s traffic laws would have been
frivolous. Richmond blames his attorney for failing to secure a favorable ruling on the suppression
matter, but the Court finds no basis on which that could have occurred.
Moreover, a valid guilty plea waives claims of non-jurisdictional error. Put in simpler
terms, once a defendant pleads guilty he waives any challenge to the indictment or other matters
preceding the plea. United States v. Campbell, 324 F.3d 497, 499 (7th Cir. 2003) (citing United
States v. Broce, 488 U.S. 563 (1989)); see Tollett v. Henderson, 411 U.S. 258, 267 (1973) (once
petitioner pleads guilty, “[ ]he may only challenge the voluntary and intelligent nature of the guilty
plea by showing that the advice [ ]he received from counsel was not within acceptable standards.”);
Young v. United States, 124 F.3d 794, 797 (7th Cir. 1997) (conviction based on plea “cannot be in
‘error’ and therefore . . . is conclusive on all factual and legal issues other than a contention that
the very initiation of the proceedings violated the Constitution.”). This includes claims such as
Richmond presents in his § 2255 motion.
Richmond next alleges “[c]ounsel was ineffective when he failed to advise the Movant that
he could timely enter an ‘open plea’ in exchange for a reduced sentence.” (Dkt. 4 at 4). He also
argues “counsel was ineffective for unreasonably delaying the change-of-plea proceedings during
the 10 month period that followed the Movants indictment.” (Id.) These contentions are not
persuasive because there is no guarantee that pleading open rather than pursuant to a plea

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agreement would result in a reduced sentence. In addition, a period of ten months from indictment
to change of plea is not unreasonable. As to the plea itself, it could not have been more rapidly
submitted if, contrary to Richmond’s lament, “his attorney had spent more time doing a better job.”
There were no features of the plea which suggested it was invalid for any reason and no
basis on which to conclude that a more lenient sentence could have resulted.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 130 S. Ct. 1473,
1485 (2010). Richmond has not met his burden of meeting that requirement here. The Court
concludes that his representation was constitutionally sufficient.
III. CONCLUSION
The records and file in this action show that Richmond is not entitled to the relief he seeks.
Accordingly, his amended motion for relief pursuant to § 2255 (Dkt. 4) is DENIED, and this action
must be dismissed with prejudice. Judgment consistent with this Entry shall now issue.
This Entry shall also be docketed under the underlying criminal action, No. 1:12-cr-96TWP-MJD-01.
IV. 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 Richmond has failed to show
that reasonable jurists would find “it debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore
DENIES a certificate of appealability.

SO ORDERED.

Date: 6/5/2017

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DISTRIBUTION:
Eric Q. Richmond, #44729-424
FLORENCE HIGH U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. Box 7000
Florence, Colorado 81226
Barry Glickman
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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