JAMES E. SHADID, Chief District Judge.
Now before the Court is Petitioner Russell's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Doc. 1. For the reasons set forth below, Petitioner's Motion (Doc. 1) is DENIED and the Court declines to issue a Certificate of Appealability.
On May 20, 2014, Michael Russell was charged in a one-count indictment in the Central District of Illinois with conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). R. 2. On October 29, 2014, Russell pleaded guilty to the charge in the indictment in a written plea and cooperation agreement (R. 35, 36), and a change of plea hearing was held before Magistrate Judge Hawley, who issued a Report and Recommendation recommending that the plea of guilty be accepted. R. 40. In the cooperation agreement, Russell and the United States agreed that, inter alia,
R. 36, at 2-3. Similarly, Russell and the United States agreed to, inter alia, the following terms as part of Russell's plea agreement:
R. 35, at 4-9 (emphasis original).
On November 18, 2014, the undersigned accepted Russell's plea of guilty, adjudged him guilty of Count 1 of the indictment, and set the matter for sentencing. R. 41. Prior to sentencing, the probation officer prepared a presentence report ("PSR"). R. 50. Therein, the probation officer determined that Russell qualified as a career offender under U.S.S.G. § 4B1.1 based on his two prior felony burglary convictions in DeKalb County and Clinton County, Missouri. R. 50, at 8. Based on a total offense level of 34 and a criminal history category of VI, Russell's guidelines range was 262 to 327 months. Id. at 23. Additionally, Russell faced a mandatory 10 year minimum sentence due to his prior felony drug convictions for possession of cocaine and unlawful possession of methamphetamine precursor. 21 U.S.C. § 841(b)(1)(B); R. 50, at 23.
Russell's attorney objected to the portion of the PSR that designated Russell as a career offender for his two prior burglary convictions. R. 50, at 28, R. 52. However, Russell's attorney withdrew his objection following an in-camera hearing at sentencing. R. 55, at 7. Nevertheless, the Court departed downward from the advisory sentencing guidelines based on Russell's attorney's motion. R. 55, at 2. On March 5, 2015, the Court imposed a sentence of 120 months— the statutory minimum—because it determined that the career offender guideline range over-represented the seriousness of Russell's criminal history. Id. at 4.
Russell now brings a motion under 28 U.S.C. § 2255 arguing that his sentence is invalid. Doc. 1. In his motion and supporting memorandum, dated June 9, 2016, Russell raises three principal arguments: (1) he was improperly designated as a career offender based on his Missouri burglary convictions; (2) his counsel was ineffective; and (3) the Government breached its obligations under the plea and cooperation agreements by failing to file a motion to depart below the mandatory minimum sentence. Doc. 2., at 5. The Government responded to Russell's motion, arguing that (a) Russell waived his right to collateral review of most of his claims; (b) he procedurally defaulted his claims; (c) his third claim is untimely and meritless; (d) his counsel was not ineffective; and (e) Johnson is not retroactively applicable to sentencing guidelines cases on collateral review. Doc. 8, at 2.
On November 28, 2016, Russell supplemented his motion to add a claim to include a challenge to the use of his Illinois conviction for possession of a controlled substance to transport, store, or deliver a methamphetamine precursor, 720 ILCS 646/20, arguing that the offense should not have been used to trigger the mandatory 10-year minimum under 21 U.S.C. § 841(b)(1)(B) because it is broader than the definition of "felony drug offense" used in 21 U.S.C. § 802(44). Doc. 11. The Government responded to the supplemental claim, arguing that Russell's supplemental claim lacks merit and is otherwise waived, defaulted, and untimely. This Order follows.
A petitioner may avail himself of § 2255 relief only if he can show that there are "flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or result in a complete miscarriage of justice." Boyer v. United States, 55 F.2d 296, 298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268 (1995). Section 2255 is limited to correcting errors that "vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude." Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993). A § 2255 motion is not a substitute for a direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir. 1995), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996).
Federal prisoners may not use § 2255 as a vehicle to circumvent decisions made by the appellate court in a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Doe, 51 F.3d at 698. Accordingly, a petitioner bringing a § 2255 motion is barred from raising: (1) issues raised on direct appeal, absent some showing of new evidence or changed circumstances; (2) nonconstitutional issues that could have been but were not raised on direct appeal; or (3) constitutional issues that were not raised on direct appeal, absent a showing of cause for the default and actual prejudice from the failure to appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717, 710-20 (7th Cir. 1994).
Section 2255 provides a 1-year period of limitation in which to file a motion attacking a conviction or sentence, and begins to run from the latest of:
28 U.S.C. § 2255(f). Here, Russell's conviction became final on March 5, 2015, because he did not—and could not—file a direct appeal. In order for Russell's claims to be timely, he must have filed his motion by March 5, 2016. His motion, dated June 9, 2016, is therefore untimely.
Russell also asserts he is entitled to relief following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (Jun. 26, 2015). The Court in Johnson held that the residual clause of the Armed Career Criminal Act ("ACCA") was unconstitutionally vague; a decision that was later declared retroactive to cases on collateral review in Welch v. United States, 136 S.Ct. 1257 (Apr. 18, 2016). Had Russell been sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), he would have had until June 26, 2016 to file a § 2255 motion raising a Johnson challenge. See 28 U.S.C. § 2255(f)(3). But Russell was not charged with or sentenced as an Armed Career Criminal. Rather, Russell was sentenced under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B) to a below-guideline mandatory minimum sentence of 120 months. And unlike the ACCA, guidelines challenges, including challenges to a career offender designation, are not cognizable on collateral review. See Beckles v. United States, 137 S.Ct. 886 (Mar. 6, 2017); Hawkins v. United States, 724 F.3d 915 (7th Cir. 2013). Because Johnson is inapplicable to Russell's sentence, it does not restart the limitations period in § 2255(f), making the entirety of Russell's motion untimely. Finally, Russell attempts to argue that his untimeliness should be excused because he did not have access to certain documents. Doc. 2, at 3. But he does not allege that he was impeded from filing the § 2255 motion itself, much less that the Government was the one impeding him from filing. See 28 U.S.C. § 2255(f)(2). Because his motion is untimely, it must be denied.
Even if Russell's claims were timely, he waived his right to collaterally attack his conviction or sentence—save for a claim of ineffective assistance of counsel—as part of his plea agreement. R. 35, at 5. Thus, the Court's review is limited to Russell's discrete claim that his attorney provided constitutionally deficient advice.
Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment. Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). The seminal case on ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court stated that in order for a prisoner to demonstrate that counsel's performance did not meet the constitutional standard, the petitioner would have to show that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88; Wyatt v. United States, 574 F.3d 455, 458-59 (7th Cir. 2009). Courts, however, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 690.
A prisoner must also prove that he has been prejudiced by his counsel's representation by showing "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Absent a sufficient showing of both cause and prejudice, a petitioner's claim must fail. United States v. Delgado, 936 F.2d 303, 311 (7th Cir. 1991). Thus, the Court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").
Here, Russell submitted an affidavit with his memorandum asserting that he entered into the plea and cooperation agreements based on his counsel's assertion that "I can't get you under the ten [year mandatory minimum] if you don't cooperate." Doc. 2, at 33. According to Russell, "I specifically stated to Attorney Daniels that I would cooperate only if he could get me less than ten years. He assured me he could arrange that, so I told him to set up the interview." Id. It is true that "[a] defendant can prove that his attorney's performance was deficient if he shows that his attorney did not make a good-faith effort to discover the facts relevant to his sentencing, to analyze those facts in terms of the applicable legal principles and to discuss that analysis with him. United States v. Barnes, 83 F.3d 934, 939-40 (7th Cir. 1996). However, it is unnecessary to determine whether Russell's attorney wrongly assured him he would receive a sentence under 10 years because, as discussed above, Russell's claim is untimely.
Russell's assertion that the Government breached its obligations under the plea agreement are not supported by the terms of that agreement. Specifically, the agreement provided two promises. First, "[a]t the time of sentencing the United States agrees to recommend the following: the United States agrees to recommend a sentence at the low end of the advisory Sentencing Guideline range or the mandatory minimum, whichever is higher." R. 35, at 9. Second,
Id. at 8.
In sum, Russell agreed that the Government would recommend a sentence of either the mandatory minimum or a sentence at the bottom of the guidelines, whichever was higher. It appears that the Government upheld that end of the bargain. Whether the Government chose to make a motion to depart—below the guidelines under § 5K1.1, or mandatory minimum under 18 U.S.C. § 3553(e)—was a decision that Russell agreed would rest with the discretion of the Government. The Government's decision not to do so was therefore not a breach of the agreement. Nor was Russell's counsel ineffective for telling him "I can't get you under the ten [year mandatory minimum] if you don't cooperate." Doc. 2, at 33. That was factually correct.
Finally, Russell does not allege that he did not understand the agreement or that he entered into it involuntarily. Rather, he is upset with the fact that he was designated a career offender, but he expressly agreed that he would "not be allowed to withdraw [his] guilty plea because of an objection to the calculation of the Sentencing Guidelines, or to the Court's sentencing findings or rulings, or because the defendant receives a sentence higher than that recommended under the plea agreement." R. 35, at 7.
Russell's claim in his supplement to his motion challenges the use of his Illinois conviction for possession of a controlled substance to transport, store, or deliver a methamphetamine precursor, 720 ILCS 646/20, arguing that the offense should not have been used to trigger the mandatory 10-year minimum under 21 U.S.C. § 841(b)(1)(B) because it is broader than the definition of "felony drug offense" used in 21 U.S.C. § 802(44). Doc. 11. A felony drug offense "means an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances." 21 U.S.C. § 802(44). Thus, in addition to the procedural defects identified above, the Court agrees with the Government's position that Watkins' prior conviction satisfies the broad definition of "felony drug offense." Neither Mathis v. United States, 136 S.Ct. 2243 (2016), nor United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), alter that determination.
To obtain a Certificate of Appealability under § 2253(c), "a habeas prisoner must make a substantial showing of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). This means that the prisoner must show "that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Id. at 484. "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. (internal quotations omitted). Here, reasonable jurists could not debate that Russell's motion was untimely. Accordingly, the Court declines to issue a Certificate of Appealability.
For the reasons set forth above, Petitioner Russell's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1) is DENIED and the Court declines to issue a Certificate of Appealability.
This matter is now terminated.
