RICHARD MILLS, District Judge.
Petitioner Joseph A. Jackson has two motions pending: A Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [d/e 1] and a Motion to Amend 28 U.S.C. § 2255 Motion or in the Alternative Motion Pursuant to 18 U.S.C. § 3582(c) [d/e 7].
Both motions are denied.
Between August and October 2006, Jackson sold a total of 23.7 grams of cocaine base to an undercover agent over the course of two transactions. See Presentence Investigation Report (PSR) [d/e 10], in Case No. 06-cr-30079, ¶¶ 10, 15. He also sold 5 grams of cocaine and 6.6 grams of cocaine base to a confidential source. See id. at ¶¶ 6-7. When he was arrested on October 16, 2006, he dropped a bag of 14 grams of cocaine, and an additional 249 grams were found on his person. See id. at ¶ 18. On November 2, 2006, Jackson was charged with distributing 5 or more grams of crack cocaine. See Indictment [d/e 5], in Case No. 06-cr-30079. On December 28, 2006, the Petitioner entered an open plea of guilty to the one-count indictment before U.S. District Judge Jeanne E. Scott. See Minute Entry of Dec. 28, 2006, in Case No. 06-cr-30079.
In preparation for his sentencing hearing, a probation officer prepared the PSR. See PSR [d/e 10], in Case No. 06-cr-30079. In the PSR, Jackson was held accountable for 1,883.95 grams of cocaine and 30.3 grams of cocaine base. See id. at ¶ 22.
The probation officer determined that, before enhancements, Jackson faced a Total Offense Level of 27. See id. at ¶ 36. However, due to having at least two prior felonies for controlled substances offenses, Jackson was subjected to career offender enhancements, resulting in a Total Offense Level After Enhancements of 34. See id. at ¶ 39.
The PSR set out Jackson's extensive criminal history. See id. at ¶¶ 40-77. Jackson was assessed 48 Criminal History Points by the probation officer—more than three times the Points required to be assigned Criminal History Category VI.
Jackson, who was 47 at the time of sentencing, had been convicted of the following offenses:
See id. at ¶¶ 41-72. The information on those convictions reflect that supervision was revoked on numerous occasions, Jackson had absconded from supervision, and he had escaped from the Illinois Department of Corrections. See id. The PSR also reflected that Jackson had many other contacts with law enforcement and the criminal justice system that did not result in conviction. See id. at ¶¶ 78-99.
In the end, the probation officer calculated that the Guideline Range was 262 to 327 months.
The sentencing hearing was held on April 30, 2007. The Court adopted the PSR with only one slight modification that did not affect the sentencing range.
The Government made a motion for a downward departure pursuant to U.S.S.G. § 5K1.1 on the basis of substantial assistance. See id. at pages 8-10. The Government stated the following:
Id. at 8-9. The Government recommended a sentence twenty percent below the low end of the Guideline Range: 209 months.
The Assistant Federal Public Defender (AFPD) representing Jackson argued in favor of an even lower sentence, requesting a term of 199 months. See id. at 10-12. The AFPD argued that Jackson was not being held accountable for a tremendous amount of drugs, that he was a middle-aged man, that the career offender enhancements were not designed for an individual like Jackson, and that the crack/powder disparity resulted in sentencing inequities. See id. at 6, 10-12. Jackson stated the following in his allocution:
Id. at 12-13.
Judge Scott stated the following upon imposing sentence:
Id. at 13-15.
At the conclusion of the sentencing hearing, Judge Scott engaged in the following colloquy with Jackson:
Id. at 17-18.
Jackson was remanded to the custody of the Marshal for service of sentence, and there was no docket activity in the case for almost ten months.
On February 15, 2008, Judge Scott appointed the First Assistant Federal Public Defender (First Assistant FPD) to represent Jackson in connection with the retroactive crack amendment. See Text Order of February 15, 2008, in Case No. 06-cr-30079. On March 6, 2008, the First Assistant FPD filed a motion to withdraw, concluding that Jackson was ineligible for relief because he was sentenced as a career offender. See Motion to Withdraw [d/e 12], in Case No. 06-cr-30079.
On March 11, 2008, Judge Scott allowed the motion to withdraw and allowed Jackson to proceed pro se. See Opinion [d/e 13], in Case No. 06-cr-30079. Jackson failed to respond in a timely fashion, and the Court concluded that he was ineligible for relief. See Text Order of April 23, 2008.
On December 12, 2008, the Court received in chambers correspondence from Jackson. It was docketed on December 15, 2008. The letter stated the following:
Letter from Jackson [d/e 14], in Case No. 06-cr-30079.
The Court noted that it appeared that Jackson was unaware of the various filings regarding the retroactive crack amendment, and directed the Clerk of Court to send a copy of the docket sheet and the filings associated with Jackson's attempt to receive retroactive relief. See Text Order of Dec. 15, 2008, in Case No. 06-cr-30079. The Court afforded Jackson an additional period of time to respond regarding his eligibility for retroactive relief. See id.
A letter from Jackson was received on January 14, 2009, and was docketed the following day. The letter states the following:
Letter from Jackson [d/e 15], in Case No. 06-cr-30079.
The Court noted that Jackson conceded that he was ineligible for retroactive relief due to his career offender status. See Text Order of Jan. 15, 2009, in Case No. 06-cr-30079. In addition, the Court stated the following:
Id.
Id. at 12.
Jackson brings one claim. See id. at 14-20. Jackson claims the following:
Id. at 14.
Jackson alleges that he told the AFPD at the conclusion of the sentencing hearing that he wished to appeal, and that Jackson believed that the AFPD had filed the notice of appeal. See id. at 14. Jackson alleges that the AFPD "advised [Jackson] that the direct appeal had been filed and that they were waiting on the Court of Appeals to reach a decision." Id.
Jackson states that he did not receive any information from the AFPD for a period of time, and he learned that the AFPD had relocated. See id. He states that he wrote to Judge Scott and the Court of Appeals to inquire regarding the status of his appeal and asking for the case number. See id.
Jackson claims that he did not receive a reply from Judge Scott, but that he did receive a response from the pro se clerk at the Court of Appeals on December 22, 2008, stating that they were unable to find a pending appeal.
Jackson claims that he sent a letter to the Office of the Federal Public Defender complaining that the AFPD had not filed an appeal, and had misled him regarding the filing of an appeal.
Jackson claims that on June 26, 2009, he sent a letter to the Clerk of this Court to obtain the new address of the AFPD, who had relocated to a Federal Public Defender's Office in another state.
Jackson argued that the AFPD's alleged behavior constitutes ineffective assistance of counsel, that he should be afforded the opportunity to appeal anew, and that an evidentiary hearing was warranted. See id. at 16-20.
Jackson attached numerous documents to his Motion [d/e 1]. He submitted two brief affidavits. The first stated the following:
Id. at 23.
The second affidavit stated the following:
Id. at 24.
Jackson attached copies of correspondence between himself and Judge Scott, the Clerk of the Court of Appeals, the Clerk of the District Court, and the Federal Public Defender's Office. See id. at 25-31.
On September 4, 2009, Judge Scott directed the U.S. Attorney to file an answer. See Opinion [d/e 2].
The Government filed its Response [d/e 4] on December 21, 2009. The Government argued that the Motion [d/e 1] was untimely, and that Jackson had not been reasonably diligent in pursuing his case and that equitable tolling would not apply.
The Government also argued that Jackson's arguments regarding communication with the AFPD are implausible. The Government further argued that Jackson's arguments were inaccurate, and attached affidavits of employees of the Office of the Federal Public Defender. The Government argued that an evidentiary hearing was not required to resolve the dispute.
The AFPD declared the following:
Affidavit of AFPD [d/e 4-1].
The legal secretary employed at the Office of the Federal Public Defender in Springfield (FPD Legal Secretary) submitted the following information in an affidavit:
Affidavit of FPD Legal Secretary [d/e 4-2].
The First Assistant FPD stated the following in an affidavit submitted by the Government:
Affidavit of First Assistant FPD [d/e 4-3].
Jackson filed his Traverse [d/e 5] on January 28, 2010, arguing that there was a factual dispute, that an evidentiary hearing was necessary, and that the affidavit of the FPD Legal Secretary was unpersuasive, because she merely stated that she did not recall receiving the correspondence.
On July 12, 2010, Judge Scott entered an Opinion [d/e 6], concluding that if the AFPD had indeed neglected to file a notice of appeal as requested, the failure would constitute ineffective assistance of counsel. Judge Scott also found that an evidentiary hearing was required to resolve the dispute. However, Judge Scott's retirement was imminent when the Opinion was entered, so the case was transferred to the undersigned.
The Court appointed counsel to represent Jackson pursuant to the Criminal Justice Act (CJA), and an evidentiary hearing was set for November 2010. See Text Order of July 26, 2010.
On October 25, 2010, Jackson filed his Motion to Amend 28 U.S.C. § 2255 Motion, or in the Alternative, Motion Pursuant to 18 U.S.C. § 3582(c) [d/e 7]. In the Motion, Jackson argued, through counsel, that the retroactive amendment to the crack cocaine guideline applied to defendants classified as career offenders, such as Jackson. In support of this position, Jackson relied upon United States v. Corner, 598 F.3d 411 (2010). Jackson filed a Memorandum in Support of the Motion [d/e 8].
On November 4, 2010, the Government filed a Response [d/e 9], arguing that Jackson was not eligible for relief under 18 U.S.C. § 3582©, and that any relief under Corner would be blocked by Teague v. Lane, 489 U.S. 288, 310 (1989), because Jackson was seeking the retroactive application of a procedural rule.
On November 19, 2010, the Court held the evidentiary hearing. Jackson testified at the hearing. However, he testified that he was blocked from bringing his legal papers from prison in Pekin, Illinois, to the Courthouse in Springfield, Illinois.
Jackson testified that following the sentencing hearing, while at the table with the AFPD, he asked about filing an appeal. See Transcript [d/e 14], 8-9. He testified that the AFPD advised against filing an appeal, but that he (Jackson) insisted that a notice of appeal be filed. See id.
Jackson testified that about a week after the sentencing hearing he had telephone contact with the AFPD. See id. at 10-11. This conversation was related to the AFPD verbally authorizing federal and local law enforcement to interview Jackson at the Menard County Jail, Petersburg, Illinois, while he awaited designation and placement at a Bureau of Prisons facility. See id.
Jackson testified that he had no further conversations with the AFPD, although he unsuccessfully tried to reach him by phone ten to fifteen additional times. See id. at 12-13. On cross-examination Jackson testified that the only telephonic conversation with the AFPD regarding the appeal was the one that took place one week after the hearing. See id. at 21-24. He testified that the AFPD stated only that the notice had been filed and that the appeal was pending. See id. The Government confronted Jackson over his statement in his letter to the Court of Appeals, wherein Jackson stated that the AFPD had told him telephonically that his appeal was looking great, and that they would be hearing from the Court soon. Id. at 23. The Government also confronted Jackson over a similar statement he made in his Affidavit. Id. at 24.
Jackson did not explain these discrepancies between his statement, his Affidavit, and his testimony. When asked whether he himself had written his Section 2255 Motion and attached Affidavit, Jackson admitted that someone else had "helped" him with it.
Much of the remaining testimony of Jackson, and the testimony of the AFPD, First Assistant FPD, and the FPD Legal Secretary was in line with their previous sworn statements.
The AFPD who represented Jackson testified that after the sentence was imposed, they did discuss the possibility of an appeal. Id. at 44-45. The AFPD testified that Jackson inquired whether an appeal would help, and that the AFPD recommended against taking an appeal because: (1) Jackson was unlikely to prevail on appeal, (2) a published appellate opinion could reveal and highlight Jackson's cooperation, and (3) any appeal would diminish the likelihood of receiving a Rule 35 motion in the future should he learn useful information while incarcerated. Id. at 45. The AFPD testified that Jackson did not request that the AFPD file a notice of appeal.
During the cross-examination of the First Assistant FPD, there was some discussion regarding Jackson's eligibility for a sentence reduction under a retroactive amendment to the crack cocaine guideline. See id. at 70-75.
Following the hearing, Jackson filed a Reply [d/e 13] regarding Jackson's Motion to Amend the 2255 Motion [d/e 7].
The Court will deny the Motion.
The Court was able to observe the demeanor of the witnesses at the evidentiary hearing. The Court did not find Jackson to be a credible witness. He appeared to be uneasy, unsure, and evasive while testifying.
In addition, his testimony was at odds with his written submissions, including sworn statements.
On the other hand, the AFPD, the First Assistant FPD, and the FPD Secretary were credible witnesses. The AFPD had a good recollection of key aspects of the representation of Jackson and his demeanor suggested he was truthful and sincere in his testimony. The First Assistant FPD and the FPD Secretary were credible in their explanations of office policies regarding communications with clients and in their testimony regarding communications with Jackson.
The Court concludes that Jackson DID NOT request that the AFPD file a notice of appeal following the sentencing hearing. As a result, the Motion [d/e 1] is untimely, and must be denied. Alternatively, the Court would deny the Motion on the merits.
The Court will deny the Motion to Amend or Correct 28 U.S.C. Section 2255 Motion or in the Alternative Motion Pursuant to 18 U.S.C. Section 3582(c) [d/e 7]. The Court concludes that this § 2255 action is not the appropriate vehicle to bring this claim. Alternatively, the Court will decline to review the merits under 18 U.S.C. Section 3582, because the issue is moot, as Jackson's identical claim on the merits has been denied in his criminal case.
"The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a), Rules Governing Section 2255 Proceedings. "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
"A petitioner makes a substantial showing where 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 adequate to deserve encouragement to proceed further." Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009) (quotation marks omitted). Reasonable jurists would not dispute that Jackson is not entitled to relief. Accordingly, the Court will not issue a certificate of appealability. If Jackson wishes to appeal this Court's ruling, he must seek a certificate of appealability from the Court of Appeals under Federal Rule of Appellate Procedure 22.
Ergo, Petitioner Joseph A. Jackson's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [d/e 1] and the Petitioner's Motion to Amend 28 U.S.C. § 2255 Motion or in the Alternative Motion Pursuant to 18 U.S.C. § 3582(c) [d/e 7] are DENIED.
The Clerk of Court is directed to notify Jackson.
CASE CLOSED.
IT IS SO ORDERED.
Motion [d/e 1], 26. Jackson attached an undated response from a pro se clerk of the Court of Appeals, returning unfiled the correspondence and stating that they were "unable to locate a pending appeal in this court with either your case title or lower court docket number." Id. at 27.
Id. at 28.
Id. at 29.
Id. at 30.
Id. at 31.
