Powe v. United States of America

Filing 7

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 5/31/2013 DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) by Derrick G Powe. The Court declines to issue a certificate of appealability. (cc: all counsel, via US mail to Derrick Powe at Otisville Federal Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
-vs-

Case Nos. 13-C-267, 08-CR-134

DERRICK POWE,
Movant.

DECISION AND ORDER

Derrick Powe pleaded guilty to four counts of bank robbery and one count of
brandishing a firearm in furtherance of one of those robberies. After the original
sentence was vacated, the Court sentenced Powe to 216 months on counts one, two and
four, to run concurrently, and 84 months on count five (the brandishing charge), to run
consecutively. The Court also ordered Powe to spend four years on supervised release
and to pay a $400 special assessment and $346,355.00 in restitution, jointly and
severally with co-defendant Johnny Hayes. Powe now moves for relief under 28
U.S.C. § 2255.
The first two claims in Powe’s motion relate to restitution and forfeiture.
These claims are not cognizable in a § 2255 proceeding. Anderson v. United States,
215 F.3d 1329 (7th Cir. 2000) (Unpublished Disposition) (citing Barnickel v. United
States, 113 F.3d 704, 706 (7th Cir. 1997) (Ҥ 2255 is not available to challenge an
order of restitution imposed as part of a criminal sentence”); Duncan v. United States,

No. 09-CV-0900-MJR, 2010 WL 3038717, at *10 (S.D. Ill. Aug. 3, 2010) (“the harm
asserted must relate to the inmate’s custody and not to any form of monetary penalty. .
. . For these reasons, [movant’s] claims regarding the forfeiture or abandonment of his
property and restitution must be dismissed because they are not cognizable under §
2255”) (internal citation omitted).
Powe’s last two claims are for ineffective assistance of counsel, first at the plea
bargaining phase, and then at the sentencing phase. In the context of a guilty plea,
Powe “must establish that counsel’s performance was objectively unreasonable and
that, but for counsel’s erroneous advice, he would not have pleaded guilty.”
Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir. 2000). Powe argues that his
attorney was ineffective for failing to challenge his career offender status, but Powe
fails to connect this allegation to his decision to plead guilty. Regarding sentencing,
Powe reiterates that his attorney did not adequately challenge his status as a career
offender.

Powe argues that at least one of his prior convictions shouldn’t count

towards his criminal history calculation because he was released from state custody on
January 31, 1996. Even if Powe’s contention is accurate, the offense still would count
towards the calculation because the sentence resulted in Powe being incarcerated
“within fifteen years of the defendant’s commencement of the instant offense . . .”
U.S.S.G. § 4A1.2(e)(1). Therefore, Powe was not prejudiced by the alleged ineffective
assistance. United States v. McKee, 598 F.3d 374, 384 (7th Cir. 2010) (movant must
establish a reasonable probability that, “but for counsel’s unprofessional errors, the
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result of the proceeding would have been different”).
In connection with this ruling, the Court must decide whether to issue or deny
a certificate of appealability. Rule 11(a), Rules Governing Section 2255 Proceedings.
Powe’s motion does not evince a “substantial showing” that “jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Accordingly, the Court will
not issue a certificate of appealability.
Powe’s motion [ECF No. 1] is DENIED. The Clerk of Court is directed to
enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 31st day of May, 2013.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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