LOMAX v. UNITED STATES OF AMERICA

Filing 8

Order Denying Motion for Relief Pursuant to 28 U.S.C. § 2255 and Denying a Certificate of Appealability - For the reasons explained in this Entry, the motion of Brandon Lomax for relief pursuant to 28 U.S.C. § 2255 must be denied and thi s action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue. For the reasons explained in this Entry, Mr. Lomax is not entitled to relief on his § 2255 motion. There was no ineffective assistance of counsel and his sentence is not unconstitutional. Accordingly, his motion for relief pursuant to § 2255 is denied and this action is dismissed with prejudice. Judgment consistent with this Entry shall now issue and a copy of this Entry shall be docketed in No. 1:12-cr-189-SEB-MJD-1. For the reasons stated herein, the Court denies a certificate of appealability. (See Order). Copy to petitioner via US Mail. Signed by Judge Sarah Evans Barker on 3/9/2018.(APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRANDON LOMAX,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:17-cv-00943-SEB-DML

Order Denying Motion for Relief Pursuant to 28 U.S.C. § 2255
and Denying a Certificate of Appealability
For the reasons explained in this Entry, the motion of Brandon Lomax for relief pursuant
to 28 U.S.C. § 2255 must be denied and this action dismissed with prejudice. In addition, the
Court finds that a certificate of appealability should not issue.
I. The § 2255 Motion
A motion pursuant to 28 U.S.C. § 2255 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). A court may grant relief from a federal conviction or sentence pursuant to § 2255 “upon
the ground that the sentence was imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such sentence, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). The scope of relief available under § 2255 is narrow, 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)
(internal citations omitted).

II. Factual Background
On October 23, 2013, Mr. Lomax was charged in a multi-count multi-defendant
indictment. Mr. Lomax was charged in count one with conspiracy to distribute 1,000 grams or
more of heroin in violation of 21 U.S.C. §§ 841(a)(1), 846. Counts two through nine charged Mr.
Lomax with distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Count 21 charged Mr.
Lomax with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The
United States had previously filed an information pursuant to 21 U.S.C. § 851(a)(1), which charged
that Mr. Lomax had two prior felony controlled substance convictions.
A nine day jury trial was held from January 29 to February 10, 2014. The jury found Mr.
Lomax guilty of all counts.

On November 21, 2014, Mr. Lomax was sentenced to life

imprisonment (life on count one; thirty years each on counts two through nine, and fifteen years
on count 19, all counts to run concurrently) to be followed by ten years of supervised release. Mr.
Lomax was also assessed a special assessment of $1000. The Court entered judgment on December
2, 2014.
Mr. Lomax appealed his conviction and sentence. On March 8, 2016, the Seventh Circuit
upheld his conviction and sentence, finding that the evidence was sufficient to establish conspiracy
and that there was no error in the district court’s finding that he had two prior drug convictions,
which enhanced his mandatory minimum sentence to life imprisonment. See United States v.
Lomax, et al., 916 F.3d 468 (7th Cir. 2016).
On March 27, 2017, Mr. Lomax filed a motion for post-conviction relief pursuant to
28 U.S.C. § 2255 alleging that he received ineffective assistance of counsel during trial and
claiming that Johnson v. United States, 135 S. Ct. 2551 (2015), required modification of his
sentence.

III. Discussion
Mr. Lomax seeks relief arguing: (1) ineffective assistance of counsel for failing to request
that the court conduct an inquiry of the jury when counsel became aware of potential juror bias;
and (2) based on Johnson, he is no longer an armed career criminal or a career offender, and his
sentence is therefore unconstitutional. The United States argues that trial counsel was not
ineffective and that Johnson offers Mr. Lomax no sentencing relief.
A.

Failure to Notify Regarding a Juror’s Fear

Mr. Lomax argued he received ineffective assistance of counsel when his attorney, Mr.
Richard L. Ford, failed to notify the court and seek an inquiry of the jury after he became aware
that the entire jury told the government that they were in fear for their personal safety and wanted
security escorts to and from their vehicles each day of trial.
A petitioner claiming ineffective assistance of counsel bears the burden of showing (1) that
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); United States v. Jones, 635 F .3d 909, 915 (7th Cir. 2011). To satisfy the first prong of
the Strickland test, Mr. Lomax 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. In order to satisfy the prejudice component, Mr. Lomax
must establish that “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
“The Sixth Amendment of the United States Constitution guarantees the bedrock principle
of trial by an impartial jury.” United States v. Blitch, 622 F.3d 658, 664 (7th Cir. 2010) (citing

Skilling v. United States, 561 U.S. 358 (2010)). Absent some real showing otherwise, a jury is
presumed to be impartial. See, e.g., United States v. Siegelman, 640 F.3d 1159, 1182 (11th Cir.
2011); United States v. Ruggiero, 56 F.3d 647, 652 (5th Cir. 1995); see also Murphy v. Florida,
421 U.S. 794, 798 (1975). “[C]ourts face a delicate and complex task whenever they undertake to
investigate reports of juror misconduct or bias during the course of a trial . . . . any such
investigation is intrusive and may create prejudice by exaggerating the importance and impact of
what may have been an insignificant incident.” Blitch, 622 F.3d at 665 (citing United States v.
Abrams, 137 F.3d 704, 708 (2d Cir. 1998)).
On this issue, Respondent attached a declaration from Michelle Brady, Assistant United
States Attorney, explaining that the issue had been raised with the Court during trial. “During the
trial, it was brought to the attention of the Court that a juror requested an escort to her vehicle,
because a spectator in the courtroom made her nervous.” Dkt. 7 at 2. The Court held a sidebar
and “all counsel were consulted about whether they wanted an inquiry made of the jurors.” Id.
The three defense attorneys decided that “they did not want that inquiry, for the reason that it
would draw more attention to the issue, which they thought would harm their clients.” Id. “The
decision, made by defense attorney Rick Ford [counsel for Mr. Lomax], speaking on behalf of all
three defendants was that they did not want that inquiry, for the reason that it would draw more
attention to the issue, which they thought would harm their clients.” Id.
Mr. Ford’s strategic decision not to inquire further so as not to draw more attention to the
issue is subject to the strong presumption that Mr. Ford’s conduct was within the range of
reasonable professional assistance.

Mr. Lomax fails to overcome that presumption or to

specifically identify any prejudice he might have suffered as there is nothing to show that the juror
was biased or prejudiced. Pursuing the issue may have actually created prejudice by “exaggerating

the importance and impact of what may have been an insignificant incident.” See Blitch, 622 F.3d
at 665.
“[W]hen an attorney articulates a strategic reason for a decision, the court defers to that
choice.” United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005); see also Strickland, 466
U.S. at 690-91. “If an attorney’s decision was sound at the time it was made, the decision cannot
support a claim of ineffective assistance of counsel.” Id. (citing Winters v. Miller, 274 F.3d 1161,
1166 (7th Cir. 2001)). “[A] 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 action “might be considered sound
trial strategy.” Strickland, 466 U.S. at 689.
Thus, Mr. Ford’s decision to not pursue the juror issue was a reasonable strategy decision
and not ineffective assistance of counsel.
B.

Johnson

Mr. Lomax argues that his sentence is unconstitutional under Johnson v. United States, 135
S. Ct. 2551 (2015), because he is no longer an armed career criminal. Johnson held that a portion
of the definition of “violent felony” in the Armed Career Criminal Act (“ACCA”) was
unconstitutional.
While Mr. Lomax was sentenced as a career offender under U.S.S.G. § 4B1.2(a)(2) and as
an armed career criminal pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, his ultimate
sentence did not rely on a finding that he was an armed career criminal. In computing his offense
level for counts one through nine, conspiracy to distribute heroin and distributing heroin, Mr.
Lomax had an adjusted offense level of 42. His conviction as a felon in possession of a firearm
resulted in an adjusted offense level of 28. United States v. Lomax, et al., No. 1:12-cr-00189-SEB-

MJD-1 (hereinafter “Cr. Dkt.”), dkt. 430 at 10-11. Based on his criminal history, Mr. Lomax was
found to be a career offender under U.S.S.G. § 4B1.2(a)(2), resulting in an offense level of 37. Id.
at 11. Based on his three prior convictions for a violent felony or serious drug offense, he was
found to be an armed career criminal pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4,
resulting in an offense level of 34. Because the guidelines direct the use of the greatest offense
level, the calculation of 42 from counts one through nine was the determinative number used.
Based on his criminal history category of VI and a total offense level of 42, the guidelines range
was imprisonment for 360 months to life. Additionally, the statutory term of imprisonment for
count one is life. Mr. Lomax was ultimately sentenced to life in prison on count one.
During the sentencing hearing, whether he qualified as an armed career criminal was not
an issue even mentioned or relied upon. See Cr. Dkt. at 477. Nor was it relied upon that he is a
career offender under U.S.S.G. § 4B1.2(a)(2). Id. Because Mr. Lomax’s sentence did not depend
on a finding of being a career offender or an armed career criminal, Johnson does not apply to Mr.
Lomax’s sentence.
IV. Conclusion and Certificate of Appealability
For the reasons explained in this Entry, Mr. Lomax is not entitled to relief on his § 2255
motion. There was no ineffective assistance of counsel and his sentence is not unconstitutional.
Accordingly, his motion for relief pursuant to § 2255 is denied and this action is dismissed with
prejudice. Judgment consistent with this Entry shall now issue and a copy of this Entry shall be
docketed in No. 1:12-cr-189-SEB-MJD-1.
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. Lomax 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.
IT IS SO ORDERED.

Date:

3/9/2018

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
BRANDON LOMAX
11133-028
MCCREARY - USP
MCCREARY U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 3000
PINE KNOT, KY 42635
Michelle Patricia Brady
UNITED STATES ATTORNEY'S OFFICE
[e-mail]