Spears v. United States of America

Filing 12

ORDER signed by Judge J P Stadtmueller on 8/30/2024: DENYING 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255; DENYING Certificate of Appealability; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Quentin D Spears at Marion USP)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
QUENTIN D. SPEARS,
Petitioner,
Case No. 23-CV-1629-JPS-JPS

v.
UNITED STATES OF AMERICA,

ORDER

Respondent.

1.

INTRODUCTION
On December 4, 2023, Petitioner Quentin D. Spears (“Petitioner”)

moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
ECF No. 1. The Court screened the motion in accordance with Rule 4 of the
Rules Governing § 2255 Proceedings, concluding that only his ineffective
assistance of counsel ground for relief could proceed. ECF No. 2 at 6–7.
Petitioner failed to timely file a brief in support of his motion. See id. at 7
(noting that Petitioner’s brief in support was due thirty days after the filing
of Respondent’s answer). Respondent opposed the motion, ECF No. 10, and
Petitioner failed to timely reply. See ECF No. 9 at 2.
The Court will now address the merits of Petitioner’s § 2255 motion.
For the reasons discussed herein, the Court will deny the motion and
dismiss this case with prejudice.
2.

BACKGROUND
Petitioner’s § 2255 motion arises from his criminal proceedings

before this Court in United States v. Quentin D. Spears, 22-CR-68-JPS (E.D.
Wis.).1 In March 2022, Petitioner was charged in a three-count Indictment

Docket references thereto will be cited as CR-ECF.

1

of possession with intent to distribute fentanyl and heroin, possession of a
firearm in furtherance of drug trafficking, and possession of a firearm as a
felon. CR-ECF No. 1 at 1–3. In August 2022, the Government filed an
Information charging Petitioner with a single count of possession with
intent to distribute heroin. CR-ECF No. 15. Petitioner pleaded guilty to the
Information, CR-ECF No. 17, and was sentenced in December 2022 as a
career offender to 110 months’ imprisonment, to operate to run
concurrently with the balance of the sentence that Petitioner was serving in
a state court case (the “State Case”). CR-ECF No. 29 at 6; CR-ECF No. 35 at
2. The sentence imposed reflected a downward adjustment from the 116month sentence the Court would have otherwise imposed to ensure that
Petitioner received a credit of six months that the Bureau of Prisons would
not have otherwise credited. CR-ECF No. 35 at 2. Petitioner is incarcerated
at Marion FCI with a projected release date of September 23, 2030. Inmate
Locator,

FED.

BUREAU

OF

PRISONS,

available

at

https://www.bop.gov/inmateloc/ (last visited Aug. 30, 2024).
3.

STANDARD OF REVIEW ON HABEAS
A person serving a sentence imposed by a federal court who is
claiming the right to be released 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, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). “Relief under § 2255 is available ‘only in extraordinary
situations, such as an error of constitutional or jurisdictional magnitude or
where a fundamental defect has occurred which results in a complete
miscarriage of justice.’” United States v. Coleman, 763 F.3d 706, 708 (7th Cir.
2014) (quoting Blake v. United States, 723 F.3d 870, 878–79 (7th Cir. 2013)).
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“[W]here the motion, files, and records of the case conclusively show that
the prisoner is entitled to no relief,” the court need not hold an evidentiary
hearing. Torzala v. United States, 545 F.3d 517, 525 (7th Cir. 2008) (quoting
Cooper v. United States, 378 F.3d 638, 641–42 (7th Cir. 2004)).2
4.

LAW & ANALYSIS
4.1

Legal Standard

Courts apply the two-prong test, set forth in Strickland v. Washington,
466 U.S. 668 (1984), to evaluate the effectiveness of counsel. Makiel v. Butler,
782 F.3d 882, 897 (7th Cir. 2015). “The Sixth Amendment guarantees a
defendant the effective assistance of counsel at ‘critical stages of a criminal
proceeding,’ including when he enters a guilty plea” and at sentencing. Lee
v. United States, 582 U.S. 357, 363 (2017) (quoting Lafler v. Cooper, 566 U.S.
156, 165 (2012) and citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)); Eddmonds
v. Peters, 93 F.3d 1307, 1319 (7th Cir. 1996) (citing Stewart v. Gramley, 74 F.3d
132, 135 (7th Cir. 1996) and Strickland, 466 U.S. at 690–91).
“A party asserting ineffective assistance of counsel bears the burden
of establishing two elements: (1) that his trial counsel’s performance fell
below objective standards for reasonably effective representation, and
(2) that counsel’s deficiency prejudiced the defense.” Blake, 723 F.3d at 879
(citing Strickland, 466 U.S. at 687–88; United States v. Jones, 635 F.3d 909, 915
(7th Cir. 2011); and Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009)).
“[A] court does not need to address the Strickland prongs in any particular
order. If one prong is found to be insufficient, the court need not address
the other prong.” Ruhl v. Hardy, 743 F.3d 1083, 1092 (7th Cir. 2014) (citing
Strickland, 466 U.S. at 697).

Such is the case here. Accordingly, the Court declines to hold an
evidentiary hearing and instead disposes of Petitioner’s motion on the present
record.
2

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With respect to the first prong, the Strickland standard is “‘highly
deferential’ to counsel, presuming reasonable judgment and declining to
second guess strategic choices.” United States v. Shukri, 207 F.3d 412, 418 (7th
Cir. 2000) (quoting United States v. Williams, 106 F.3d 1362, 1367 (7th Cir.
1997)). There is a “strong presumption” that counsel’s decisions constitute
reasonable litigation strategy. Strickland, 466 U.S. at 689 (citing Michel v.
Louisiana, 350 U.S. 91, 101 (1955)); see also United States v. Trevino, 60 F.3d
333, 338 (7th Cir. 1995) (“[B]ecause counsel is presumed effective, a party
bears a heavy burden in making out a winning claim based on ineffective
assistance of counsel.”).
At the sentencing stage, counsel “must make a significant effort,
based on reasonable investigation and logical argument, to mitigate his
client’s punishment.” Eddmonds, 93 F.3d at 1319 (quoting Gramley, 74 F.3d
at 135 and Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989)) (internal
quotation marks omitted). “[C]ounsel may not treat the sentencing phase
as nothing more than a mere postscript to the trial.” Kubat, 867 F.2d at 369.
“Counsel’s work must be assessed as a whole; it is the overall
deficient performance, rather than a specific failing, that constitutes the
ground for relief.” Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005)
(citing Bell v. Cone, 535 U.S. 685, 697 (2002); Strickland, 466 U.S. at 690; and
Holman v. Gilmore, 126 F.3d 876, 881–84 (7th Cir. 1997)).
Meanwhile, the prejudice prong is not met merely by a showing that
“counsel’s errors might have had an effect on the outcome.” Ruhl, 743 F.3d
at 1091. Instead, there must be “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 1091–92 (quoting Strickland, 466 U.S. at 694). At the
plea stage, specifically, Strickland’s prejudice prong requires the defendant
to “show that there is a reasonable probability that, but for counsel’s errors,
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he would not have pleaded guilty and would have insisted on going to
trial.” Hill, 474 U.S. at 59; Lafler, 566 U.S. at 163 (“In the context of pleas a
defendant must show the outcome of the plea process would have been
different with competent advice.” (citing Missouri v. Frye, 566 U.S. 134, 148
(2012) and Hill, 474 U.S. at 59)).
4.2

Analysis

Petitioner argues that his trial counsel, Attorney Dennise Moreno
(“Attorney Moreno”), was constitutionally ineffective for failing to object to
(a) the allegedly miscalculated sentencing range under the United States
Sentencing Guidelines (the “Guidelines”); (b) Petitioner’s receipt of six
months of credit instead of “the full 18 months served” in the State Case;
and (c) the classification of Petitioner as a career offender. ECF No. 2 at 2–3
(citing ECF No. 1 at 1–2, 29). This argument fails.
Petitioner’s contention that Attorney Moreno was unaware of these
issues and failed to object to them is in error. See ECF No. 1 at 29 (“Had trial
counsel been more diligent, she would have been aware of the claims
presented by [Petitioner] in this [motion] . . . .”). As Respondent notes, ECF
No. 10 at 2, each of the topics of which Attorney Moreno was allegedly
“[un]aware” were considered and addressed by her to the extent
appropriate, as set forth in both the presentence investigation report
(“PSR”), CR-ECF No. 29, the addendum thereto, CR-ECF No. 30, and
Attorney Moreno’s affidavit, ECF No. 6-1.
The Court first addresses Petitioner’s argument with respect to the
career offender enhancement. Attorney Moreno concedes that she did not
object during the presentence investigation process to Petitioner’s
classification as a career offender because “she saw no issue with the
technical [G]uideline calculations in the [PSR].” ECF No. 6-1 at 5. But she
did argue in her sentencing memorandum that “although [Petitioner]
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technically qualified as a career offender under the guidelines’ text, there
were several policy reasons [as to why] the Court should not be swayed by
the career offender enhancement” for purposes of sentencing. Id. at 4–5
(citing CR-ECF No. 33 at 6). In other words, Attorney Moreno did in fact
object to the career offender enhancement. Petitioner, moreover, averred
“freely and voluntarily” by entering into the plea agreement that he
understood that he “may qualify as a career offender under the . . .
Guidelines.” CR-ECF No. 17 at 3, 12. He freely accepted the risk of that
possibility and cannot now be heard to complain of it. He has also failed to
reply to Respondent’s assertion that he “indisputably has two prior
qualifying convictions for felony heroin distribution” such that he was
appropriately deemed a career offender. ECF No. 10 at 4 (citing CR-ECF
No. 29).
Notwithstanding the foregoing, the Court addresses the merits of
Petitioner’s career offender argument. The PSR noted that
[i]n accordance with the provisions found under USSG
§ 4B1.1, the defendant is a career offender if [he] was at least
18 years old at the time of the instant offense of conviction;
the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and the
defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense. The
defendant has prior convictions in Dane County Circuit Court
for Possession with Intent – Heroin (>3-10 Grams) [Wis. Stat.
§
961.41(1m)(d)2]
(Case
No.
12CF000923)
and
Manufacture/Deliver Heroin (>3 Grams) [Wis. Stat.
§ 961.41(1)(d)1] (Case No. 14CF002262) and meets the criteria
above.
CR-ECF No. 29 at 6.
Petitioner’s argument goes to the last element of the enhancement—
that he “has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Petitioner
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argues that he does not meet this element because “[c]onvictions under Wis.
Stat. § 961.41 are not properly considered controlled substance offenses to
trigger the career offender enhancement . . . .” ECF No. 1 at 17. Specifically,
he argues that “Section 961.41 . . . is . . . categorically broader than [U.S.S.G.]
§ 4B1.2(b)” and “the least criminalized act pursuant to the relevant
statute(s) make it a categorical mismatch for the career offender
designation.” Id. at 26, 29.
This argument has been rejected by the Seventh Circuit.
[The defendant] argued that one of the predicate convictions
identified in the PSR—a Wisconsin conviction for possession
with intent to distribute cocaine in violation of sections
961.41(1m)(cm) and 939.05 of the Wisconsin Statutes—was
categorically broader than the Guidelines definition of a
’controlled substance offense.’ U.S.S.G. § 4B1.2(b). . . . We have
already rejected [this] argument . . . . Because the definition of
‘controlled substance offense’ in the career-offender guideline
encompasses inchoate offenses, the Wisconsin controlledsubstances statute is a valid predicate.
United States v. Stewart, 813 F. App’x 241, 241–42 (7th Cir. 2020) (citing
United States v. Adams, 934 F.3d 720 (7th Cir. 2019)); see also Frazier v. Kallis,
No. 16-cv-1485, 2018 U.S. Dist. LEXIS 215525, at *7–8 (C.D. Ill. Dec. 20, 2018)
(rejecting the defendant’s argument that he should not have been
designated a career offender because “his two convictions under Wisconsin
law—Possession of THC with intent to manufacture, distribute, or deliver
pursuant to Wis. Stat. Ann. § 961.41(1m)(h)(1) . . . and Manufacture,
distribut[e,] or deliver[] . . . THC pursuant to Wis[.] Stat. Ann.
§ 961.41(1)(h)(1) . . . are broader than the definition of controlled substance
offenses under USSG § 4B1.2(b)”). Given this authority, Attorney Moreno
was not ineffective for failing to challenge the application of the career
offender enhancement to Petitioner. Moore v. United States, 188 F. App’x 494,
496 (7th Cir. 2006) (“[F]ailure to raise a losing argument does not constitute
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ineffective assistance of counsel.” (citing Whitehead v. Cowan, 263 F.3d 708,
731 (7th Cir. 2001))).
Petitioner also argues that Attorney Moreno was ineffective with
respect to Petitioner’s receiving six, rather than eighteen, months of credit
for time served in the State Case. But Attorney Moreno did ask the Court in
her sentencing memorandum and at the sentencing hearing to order that
Petitioner’s sentence run “fully concurrent with the year and six months
[Petitioner] ha[d] already served” on revocation from the State Case or, in
effect, for the Court to grant a year and six months’ worth of credit for time
served in the State Case. CR-ECF No. 33 at 6; CR-ECF No. 49 at 6. Petitioner
acknowledges this. ECF No. 1 at 12. The Court addressed that request at
sentencing, CR-ECF No. 49 at 6, but it declined to grant the full amount of
credit sought, for which decision Petitioner cannot fault Attorney Moreno.
See id. at 6–7 (Court explaining at sentencing hearing that fully concurrent
sentences such as that requested by Attorney Moreno are “not at all possible
in this branch of the Court” because “there must be incremental
punishment when offenders violate the terms of supervised release”);
Sullivan v. United States, No. 15-1234, 2016 U.S. Dist. LEXIS 40664, at *28
(C.D. Ill. Mar. 29, 2016) (“[T]he fact that the objections were ultimately
unsuccessful does not establish ineffective assistance.”).
In addition to undertaking the above-described efforts, Attorney
Moreno vigorously advocated for Petitioner by negotiating for the
Government’s dismissal of two of the three counts charged in the
Indictment, greatly reducing Petitioner’s sentencing exposure. See ECF No.
6-1 at 2. In the presentence investigation process, she successfully objected
to the PSR writer’s calculation of Petitioner’s criminal history points. Id. at
4. She also ably represented Petitioner at sentencing, pointing out that this
was Petitioner’s first federal case and that he had accepted responsibility
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for his actions. CR-ECF No. 49 at 12–14. Considered holistically, it cannot
be said that her performance “fell below objective standards for reasonably
effective representation.” Blake, 723 F.3d at 879 (citations omitted).3
Lastly, the Court addresses Petitioner’s argument that the
deficiencies that he perceives in his conviction and sentencing constitute
plain error. ECF No. 1 at 1, 31, 33. But “[t]he plain error standard applies to
cases on direct appeal, not to a federal habeas petition challenging a . . .
conviction,” so that argument has no meaning here. Wilmington v. Sternes,
108 F. App’x 405, 411 n.2 (7th Cir. 2004) (citing Engle v. Isaac, 456 U.S. 107,
134 (1982)).
5.

CONCLUSION
As discussed herein, Petitioner has not demonstrated “that his trial

counsel’s performance fell below objective standards for reasonably
effective representation.” Blake, 723 F.3d at 879 (citations omitted).
Accordingly, the Court will deny his § 2255 motion with prejudice.
The Court must address one additional matter. Under Rule 11(a) of
the Rules Governing Section 2255 Cases, “the district court must issue or
deny a certificate of appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability under 28 U.S.C.
§ 2253(c)(2), “petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The petitioner “need not
show he is likely to prevail, but he must show that ‘reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were

In light of that conclusion, the Court need not address the prejudice prong.
Ruhl, 743 F.3d at 1092 (citing Strickland, 466 U.S. at 697).
3

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adequate to deserve encouragement to proceed further.’” Peterson v. Douma,
751 F.3d 524, 528 (7th Cir. 2014) (quoting Slack, 529 U.S. at 484).
In light of the well-settled principles governing the disposition of
Petitioner’s grounds for relief, as outlined above, the Court cannot fairly
conclude that reasonable jurists would debate whether his motion should
be decided differently; as a consequence, the Court must deny him a
certificate of appealability.
Accordingly,
IT IS ORDERED that Petitioner Quentin D. Spears’s motion to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, ECF No. 1,
be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability be and
the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of August, 2024.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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This Order and the judgment to follow are final. A dissatisfied party may
appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within thirty (30) days of
the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend
this deadline if a party timely requests an extension and shows good
cause or excusable neglect for not being able to meet the thirty-day
deadline. See Fed. R. App. P. 4(a)(5)(A). Moreover, under certain
circumstances, a party may ask this Court to alter or amend its judgment
under Federal Rule of Civil Procedure 59(e) or ask for relief from
judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within twenty-eight
(28) days of the entry of judgment. The Court cannot extend this deadline.
See Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. The Court cannot extend
this deadline. See id. A party is expected to closely review all applicable
rules and determine all applicable rules and determine what, if any,
further action is appropriate in a case.

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