Purham v. United States

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

SYLVESTER PURHAM, )

)

Petitioner, )

)

v. ) No. 17-CV-3240

)

UNITED STATES OF AMERICA, )

)

Respondent. )

OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

Now before the Court is Petitioner Sylvester Purham’s Motion

to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §

2255 (“§ 2255 Motion”) (d/e 1). Because Petitioner cannot show

prejudice on his ineffective assistance of counsel claims, his § 2255

Motion is DENIED.

I. FACTS

A. Petitioner Pleads Guilty in Case No. 12-CR-30019

On February 8, 2012, a federal grand jury charged Petitioner

with several offenses, including conspiring with his brother Howard

Purham to distribute 280 grams of cocaine base (crack) (Count 1).

United States v. Sylvester Purham, Case No. 12-CR-30019,

Indictment (d/e 21) (hereinafter Case No. 12-CR-30019). The

charged conduct occurred from July 2010 to August 2011. Id.

Petitioner was in prison on a three-year sentence for Felon in

Possession/Use of a Firearm beginning August 2010. See PSR ¶

49, Case No. 12-CR-30019 (d/e 65).

On May 31, 2012, Petitioner appeared before United States

Magistrate Judge Byron G. Cudmore. Petitioner was represented by

appointed counsel, Monroe McWard. Petitioner signed a Notice

Regarding Entry of Plea of Guilty consenting to Judge Cudmore

conducting the Rule 11 proceedings. Case No. 12-CR-30019 (d/e

36).

At the May 31, 2012 hearing, Petitioner was sworn and

questioned by the Court, found to be competent to enter a knowing

plea of guilty, and advised of his right to trial by jury and the

essential elements of the charge. Case No. 12-CR-30019, Minute

Entry, May 31, 2012. Judge Cudmore confirmed that Petitioner

had enough time to discuss his case with counsel and that he was

satisfied with counsel’s efforts on his part. Case No. 12-CR-30019,

May 31, 2012 Tr. at 8 (d/e 80). Petitioner also confirmed that he

discussed the applicable advisory sentencing guidelines and the

mandatory minimum penalties with counsel. Id. at 14-15.

The prosecutor stated the elements of the offense. The

Magistrate Judge specifically advised Petitioner that the weight of

the drug was a necessary element of proof to trigger the mandatory

minimum penalties. Id. at 16. Petitioner indicated that he

understood. Id.

By agreement and with Petitioner’s consent, the change of plea

hearing was then continued to June 4, 2012. Case No. 12-CR-

30019, Minute Entry, May 31, 2012. In the interim between the

hearings, the Government filed a notice pursuant to 21 U.S.C. §

851, notifying Petitioner that the Government intended to seek

enhanced penalties based on Petitioner’s prior felony conviction for

Manufacture/Delivery of a Controlled Substance in the Circuit

Court of Adams County, case number 2006-CF-640. Government’s

Notice of Prior Conviction (d/e 38).

When the hearing resumed on June 4, 2012, the Magistrate

Judge further explained that, with one prior felony conviction, the

potential penalty was a “mandatory minimum of 20 years and up to

life.” Crim Case., Tr. at 7 (d/e 79). The following exchange

occurred:

THE COURT: Do you understand that there’s a mandatory

minimum penalty?

THE DEFENDANT: Yes, sir.

THE COURT: And if the notice of prior felony conviction is

found to be valid, what mandatory minimum penalty does

it trigger?

THE DEFENDANT: 20 years.

Id. at 8.

The Magistrate Judge explained that the advisory sentencing

guidelines would advise the sentencing judge where the sentence

should fall. Id. at 10. The Magistrate Judge stated:

THE COURT: Do you understand that if those guidelines

come in below the mandatory minimum, then the

mandatory minimum becomes the guideline range, the

advisory range. Understood?

THE DEFENDANT: Yes.

THE COURT: You understand that the sentencing court

has certain discretion to go above or below the advisory

guidelines, but cannot go below the mandatory minimum.

Understood?

THE DEFENDANT: Yes, sir.

Id. at 10. When the Magistrate Judge asked Petitioner if anyone

had threatened or forced him to plead guilty or promised him what

his sentence would be, Petitioner responded, “No, sir.” Id. at 11-12.

The Government recited the factual basis for the plea,

including the statement that the amount of crack cocaine involved

in the conspiracy was in excess of 280 grams. Id. at 14. Petitioner

indicated that he listened to what the Government stated and that

the Government told the Court the truth. Id. at 15-16. Petitioner

also explicitly agreed that the weight of the drug involved in the

conspiracy was 280 grams or more. Id. at 16.

On June 5, 2012, the Magistrate Judge filed a Report and

Recommendation (Case No. 12-CR-30019, d/e 39) recommending

that the Court accept Petitioner’s guilty plea. On June 26, 2012,

this Court accepted the guilty plea. See Case No. 12-CR-30019,

Text Order, June 26, 2012.

B. Petitioner Moves to Withdraw His Guilty Plea

On November 20, 2012, the United States Probation Office

disclosed its initial draft of the Presentence Investigation Report

(PSR) to the parties. Case No. 12-CR-30019 (d/e 65) (PSR

identifying the report was prepared on November 20, 2012 and

revised August 6, 2013); see also April 25, 2013 Tr. at 11 (Petitioner

stating he received the initial draft on November 23 or 24, 2012).

The initial draft held Petitioner responsible for 1.9 kilograms of

crack cocaine. PSR ¶ 20. Petitioner’s offense level was 43 with a

criminal history category of VI, resulting in a guideline range of life

in prison. PSR ¶ 92.

On November 21, 2012 and December 14, 2012, Petitioner

sent the Court letters conveying his desire to withdraw his guilty

plea. Case No. 12-CR-30019 (d/e 42, 44). Petitioner expressed

concern about his counsel, McWard. Petitioner also argued that,

even though he had pleaded guilty, he thought, based on his

counsel’s advice, that he could argue the drug weight at sentencing.

The Court allowed McWard to withdraw as counsel and

appointed Jason Vincent to represent Petitioner. Case No. 12-CR-

30019, Minute Entry, Jan. 28, 2013. On April 25, 2013, the Court

held a hearing on the motion to withdraw guilty plea.

Petitioner testified that he pleaded guilty to conspiracy to

distribute a controlled substance, the controlled substance being

280 grams or more of crack cocaine. Case No. 12-CR-30019, Tr. 4

(d/e 78) (“That’s what the count stated.”). In Petitioner’s words,

McWard told Petitioner that “we was just gonna plead guilty to the

said count and go to sentencing and argue the drug weight.” Id. at

5.

When asked why he answered the questions as he did

regarding the weight, Petitioner testified that his attorney told him it

was just procedure to say yes. Id. at 7:

Because my lawyer said it was just procedure. And if I say

no to the questions, then he wouldn’t accept my guilty plea

and I wouldn’t get to argue the drug weight at sentencing.

So it was just procedure to say yes and we was gonna go

on forward to sentencing.

Id. Despite his answers to the Magistrate Judge’s questions,

Petitioner thought, based on what Petitioner said McWard told him,

that he could argue for a sentence of less than 20 years. Id. 7-8.

After Petitioner pleaded guilty, he conducted research.

Petitioner learned that, because he pleaded guilty to the count, he

pleaded guilty to the drug weight and he could not argue that the

conspiracy involved less than 280 grams. Id. at 5, 8. Petitioner

claimed he would not have pleaded guilty had he known that he

could not demonstrate at sentencing that he should be held liable

for less than 280 grams. See id. at 12-13. Petitioner also stated

that he understood that if he withdrew his guilty plea and the

Government filed a second notice of prior conviction, he could be

facing mandatory life in jail. Id. at 21.

McWard testified that he went over the discovery with

Petitioner extensively. Id. at 23. McWard advised Petitioner that

the drug weight involved was 280 grams or more. Id. at 24.

McWard denied telling Petitioner that he could challenge the 280

grams to which Petitioner pleaded guilty. Id. at 25. Instead,

McWard told Petitioner that he could challenge the drug weight at

sentencing, but that Petitioner could not change his plea by trying

to argue that the drug amount was under 280 grams. Id. at 28.

McWard denied ever telling Petitioner to give an untruthful answer

or that answering in a certain way was just “procedure.” Id. at 26.

McWard also explained to Petitioner that the Court had a certain

amount of discretion in sentencing but that the mandatory

minimum was 20 years. Id. at 29. McWard had “no doubt” that

Petitioner knew he was facing a minimum of 20 years. Id. at 25.

This Court denied the motion to withdraw the guilty plea,

finding that the transcript of the plea hearing indicated that

Petitioner understood the drug amount involved and the minimum

20-year sentence he faced. Order 5 (d/e 52).

C. Court Sentences Petitioner to 360 Months’ Imprisonment

On August 22, 2013, the Court held Petitioner’s sentencing

hearing. Howard was sentenced at the same time.

The PSR recommended a base offense level of 34 based on an

“extremely conservative estimate” of 1.9 kilograms of crack cocaine.

Case No. 12-CR-30019, PSR ¶¶ 20, 27 (d/e 65). This included

approximately 1.8 kilograms transported to Quincy in 2008—before

Petitioner was incarcerated—and approximately 190 grams of crack

cocaine transported between the dates charged in the Indictment—

July 2010 to August 2011. Petitioner also received a number of

sentencing enhancements and a three-level reduction for

acceptance of responsibility. This resulted in a total offense level of

43. The PSR also concluded that Petitioner had 15 criminal history

points, which resulted in a criminal history category of VI. With a

total offense level of 43 and a criminal history category of VI,

Petitioner’s advisory guideline range was life.

Petitioner made several objections to the PSR. As is relevant

to the § 2255 Motion, Petitioner challenged: (1) the drug amounts

attributed to Petitioner, including the approximately 1.8 kilograms

transported to Quincy in 2008; (2) the two-level enhancement for

recruiting a 17-year-old; and (3) the receipt of three criminal history

points for both Adams County Circuit Court Case No. 06-CF-618

and Case No. 06-CF-640. The Government asserted that Petitioner

was not entitled to the two-level reduction for acceptance of

responsibility under Section 3E1.1(a) of the Sentencing Guidelines

or the additional one-level reduction under Section 3E1.1(b).1

This Court found that the drug amounts from 2008 were

relevant conduct, and Defendant should be held accountable for a

total of 1.9 kilograms of crack cocaine. The Court sustained

Petitioner’s objection to a two-level enhancement for recruiting a

17-year-old. The Court also found that the two Adams County

convictions were separated by an intervening arrest and, therefore,

three criminal history points were properly awarded for each

conviction. Finally, the Court amended Petitioner’s offense level to

reflect that Petitioner did not receive a three-level reduction for

acceptance of responsibility. Specifically, the Court agreed with the

Government that Petitioner and his brother Howard falsely denied

or frivolously contested the relevant conduct as it related to the

1 The Government must make a motion for a defendant to receive the additional

one-level reduction under Section 3E1.1(b).

offense of conviction. Case No. 12-CR-30019, Tr. 112 (d/e 77). The

Court also noted that Petitioner and Howard objected to making

threats to members of the conspiracy but that the evidence showed

that they orchestrated the threats either directly or indirectly based

on the evidence. Id.2

The Court calculated Petitioner’s total offense level at 43 and

criminal history category at VI, resulting in guideline range of life.

Id. at 124-25 (d/e 77); but see id. at 119 (noting that the offense

level was really greater than 43). 3 The Court used its discretion,

however, in not applying the 18-to-1 crack cocaine ratio but

treating crack cocaine and powder the same. Doing so gave

2 At the sentencing hearing, the Government presented the following evidence:

(1) testimony from Nick Hiland that (a) Petitioner, in a recorded call, told

Howard that, if Sydney Reed was willing to stand by his statement, Howard

should “[b]eat his little ass”; (b) that Reed told Hiland that Howard threatened

him and that a fire occurred at Reed’s mother’s residence that Reed believed

someone involved with the Purhams had set; (c) that Jerrica Jones told Hiland

that Shiya White told Jones that Howard did not want Jones to testify and that

Howard threatened Jones; and (d) he located a recorded phone call of Howard

instructing White to tell Jones that she could testify how she chose but not to

testify to the threats from Howard; and (2) testimony from Jones that Howard

and Tyree Malone threatened her and that White told her that Howard wanted

her to testify that he did not threaten her.

3 At the sentencing hearing, the Government stated that, given the ruling on

acceptance of responsibility, the enhancement for obstruction of justice should

also apply. The Government also noted: “but again, it would be more than 43,

so I don’t think it ultimately affects the guideline here.” Tr. at 119 (d/e 77).

Petitioner a total offense level of 36 and a criminal history category

of VI, resulting in a sentencing guideline range of 324 to 405

months’ imprisonment. The Court sentenced Petitioner to 360

months’ imprisonment. Howard was sentenced to 240 months.4

C. Petitioner Appeals, and the Seventh Circuit Remands

Petitioner appealed. The Seventh Circuit appointed attorney

Britt Cramer.

On appeal, Petitioner raised two issues: (1) whether the drug

conduct from 2008 constituted relevant conduct, and (2) whether

the Court should have applied a three-level role in the offense

enhancement rather than a four-level enhancement. United States

v. Purham, 754 F.3d 411, 413 (7th Cir. 2014) (“Purham I”). The

Seventh Circuit found that this Court did not commit clear error in

applying the leader/organizer enhancement. Id. at 415-16. The

Seventh Circuit also found, however, that this Court clearly erred in

characterizing the 2008 drug transaction as relevant conduct based

on the record before it. Id. at 414-15. The Seventh Circuit reversed

4 Howard was held accountable for at least 280 grams but less than 840 grams.

He had a criminal history category of I. After the Court took away his

acceptance of responsibility and added an enhancement for obstruction of

justice, his advisory guideline range was life. Howard faced a mandatory

minimum of 120 months.

and remanded for resentencing, noting that the Government was

free at resentencing to provide “the necessary evidence

[establishing] a link between Purham’s 2008 drug transportation

and the later distribution.” Id. at 415.

D. Court Resentences Petitioner to 324 Months’ Imprisonment

On remand, the Court reappointed Jason Vincent. The

Government chose not to present evidence establishing a link

between Petitioner’s 2008 drug transportation and the 2010/2011

transportation. Instead, the Government argued that the Court

should use a base offense level of 32 when calculating the advisory

guideline range because the conspiracy included at least 280

grams. Case No. 12-CR-30019, United States’ Sentencing

Commentary 2 (d/e 105) (citing U.S.S.G. § 2D1.1(c)(4)). Petitioner

responded that the remaining drug amounts identified in the PSR

only totaled 180.9 grams. Case No. 12-CR-30019, Def.’s Resp. to

United States’ Sentencing Commentary 3 (d/e 106) (arguing that

the base offense level should be 18).

The Court calculated Petitioner’s advisory guideline range as

follows. The Court determined that the base offense level for the

offense of conspiracy to possess 280 grams of cocaine base with the

intent to distribute was 32 under United States Sentencing

Guideline Section 2D1.1(c) (2011)). See Case No. 12-CR-30019, Tr.

15 (d/e 125). The Court used the 280-gram figure because

Petitioner admitted that the conspiracy involved 280 grams or more

at his change of plea hearing. Id. at 14. The Court applied several

enhancements totaling 10 levels. Id. at 15-16. The Court refused

to adjust Petitioner’s offense level for acceptance of responsibility

under Guideline Section 3E1.1 because Petitioner falsely denied

committing the offense and had orchestrated threats against

members of the conspiracy either directly or indirectly. Id. at 16.

That resulted in a total offense level of 42. Id.

The Court then applied the two-level reduction under

Amendment 782 that was set to go into effect the next day. Id. at

17. This reduced Petitioner’s offense level to 40. With 15 criminal

history points and a criminal history category of VI, Petitioner’s

advisory sentencing guideline range was 360 months to life. Id.

The Court noted the 18-to-1 disparity in the Sentencing

Guidelines’ treatment of crack cocaine versus powder and exercised

its discretion to vary downward from the Guidelines. Id. at 27-28.

The Court determined that, if Petitioner had conspired to distribute

280 grams of powder rather than crack cocaine, his base offense

level would have been 20. Id. at 28. With the applicable

enhancements and the application of Amendment 782, Petitioner’s

total offense level would be 28, resulting in a guideline range of 140

to 176 months. Id. The Court further noted that the range would

be increased to 240 months because of the statutory minimum. Id.

The Court noted Petitioner had performed well in the Bureau

of Prisons but also took into consideration that the statutory

minimum for the 189.3 grams of crack was 240 months’

imprisonment, the seriousness of the offense, Petitioner’s different

role in the conspiracy compared to Howard (who received 240

months), that Petitioner’s daughter was involved on the train, the

use of weapons, the use of threats, and the fire. Id. at 29. The

Court sentenced Petitioner to 324 months’ imprisonment.

E. Petitioner Appeals, and the Seventh Circuit Vacates the

Conditions of Supervised Release

Petitioner appealed, and the Seventh Circuit appointed

attorney Kent Carlson to represent him. See Case No. 12-CR-

30019, d/e 123. On appeal, Petitioner argued that this Court

exceeded the scope of the remand when the Court recalculated

Petitioner’s base offense level, that Petitioner’s 324-month sentence

was unreasonable, and that the Court erred in imposing two special

conditions of supervised release. The Seventh Circuit affirmed in

part and reversed in part. United States v. Purham, 795 F.3d 761

(7th Cir. 2015) (“Purham II”).

The Seventh Circuit held that this Court did not exceed the

remand order. The Seventh Circuit found that the district court

“chose the obvious number—280 grams—which is the amount

Purham pled guilty to conspiring to distribute.” Id. at 764. The

Seventh Circuit further found the 324-month sentence was not

unreasonable. Id. at 765. Finally, the Seventh Circuit vacated two

of the conditions of supervised release—the community-service

condition and the gang-association condition—in light of United

States v. Thompson, 777 F.3d 368 (7th Cir. 2015). Purham II, 795

F.3d at 767.

F. On Remand, the Court Vacates the Two Conditions of

Supervised Release

On remand, this Court declined to hold a sentencing hearing

after the Government “filed a document stating its position that

striking both conditions of supervised release [was] appropriate.”

Text Order, Oct. 8, 2015 (citing United States’ Position, d/e 129).

The Court noted that under Federal Rule of Criminal Procedure

32.1(c), no hearing is necessary when the relief granted is favorable

to the defendant and the Government has not objected after having

a reasonable opportunity to do so. Id. The Court entered an

Amended Judgment, and Petitioner appealed.

G. Petitioner Appeals, and the Seventh Circuit Dismisses the

Appeal

On appeal, the Seventh Circuit appointed attorney Michelle

Jacobs to represent Petitioner. See Case No. 12-CR-30019, d/e

139. Jacobs filed a motion to withdraw under Anders v. California,

386 U.S. 738 (1967), asserting that the appeal was frivolous. See

United States v. Purham, 667 F. App’x 552 (7th Cir. 2016)

(unpublished) (“Purham III”). On August 17, 2016, the Seventh

Circuit granted the motion to withdraw and dismissed the appeal.

Id.

H. Petitioner Files his § 2255 Petition Raising Ineffective-

Assistance-of-Counsel Claims in Case No. 17-CV-3240

On October 25, 2017, Petitioner filed his Motion Under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person

in Federal Custody. On January 12, 2018, the United States filed a

response to the § 2255 Motion. On February 13, 2018, Petitioner

filed a reply to the United States’ response. On July 30, 2018, the

Court, after reviewing the record, determined that an evidentiary

hearing was warranted and appointed Petitioner counsel. The

evidentiary hearing was conducted on January 24 and 25, 2019. At

the hearing, Petitioner called as witnesses each of his former

attorneys—Monroe McWard, Jason Vincent, and Britt Cramer.

Petitioner also testified.

II. ANALYSIS

A person convicted of a federal crime may move to vacate, set

aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Relief

under § 2255 is an extraordinary remedy because a § 2255

petitioner has already had “an opportunity for full process.”

Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).

Post-conviction relief under § 2255 is therefore “appropriate only for

an error of law that is jurisdictional, constitutional, or constitutes a

fundamental defect which inherently results in a complete

miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594

(7th Cir. 2004) (internal quotation marks omitted).

To succeed on a claim of ineffective assistance, Petitioner must

prove that: “(1) his attorney’s performance fell below an objective

standard of reasonableness; and (2) he suffered prejudice as a

result.” Wyatt v. United States, 574 F.3d 455, 457-58 (7th Cir.

2009) (citing Strickland v. Washington, 466 U.S. 668, 687-88

(1984)). The first prong is known as the “performance prong,” and

the second is known as the “prejudice prong.” See, e.g., Wyatt, 574

F.3d at 458.

Under the performance prong, the Court’s scrutiny of

counsel’s performance is highly deferential. Rodriguez v. United

States, 286 F.3d 972, 983 (7th Cir. 2002). Petitioner must

overcome the “strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689 (also noting that the defendant must

overcome the presumption that the challenged action might

constitute sound trial strategy). Petitioner must establish the

“specific acts or omissions of counsel that [Petitioner] believes

constituted ineffective assistance.” Wyatt, 574 F.3d at 458. The

Court then determines if “such acts or omissions fall outside the

wide range of professionally competent assistance.” Id.

To satisfy the prejudice prong, Petitioner must show “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; see also Gentry v. Sevier,

597 F.3d 838, 851 (7th Cir. 2010). A reasonable probability is a

“probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. Failure to prove either prong is fatal to

a claim of ineffective assistance. Chichakly v. United States, 926

F.2d 624, 630 (7th Cir. 1991); see also Strickland, 466 U.S. at 697

(“If it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice … that course should be followed.”).

To show that counsel was ineffective at the pleading stage,

Petitioner must show (1) that his attorney performed in a deficient

manner; and (2) that, but for his attorney’s errors, Petitioner would

not have pleaded guilty and would have insisted on proceeding to

trial. Hill v. Lockhart, 474 U.S. 56-59 (1985); Coleman v United

States, 318 F.3d 754, 757-758 (7th Cir. (2003). Counsel must have

given advice that falls below the prevailing professional norms.

Chichakly, 926 F.2d at 628.

To prove ineffective assistance of appellate counsel, Petitioner

must show that appellate counsel omitted a “‘significant and

obvious issue’ without a legitimate strategic reason for doing so.”

Howard v. Gramley, 225 F.3d 784, 790 (7th Cir. 2000) (quoting

Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996)). To be effective,

appellate counsel need “not raise every nonfrivolous argument on

appeal, but rather only those arguments most likely to succeed.”

Davila v. Davis, 137 S. Ct. 2058, 2067 (2017) (citations omitted).

Declining to raise a claim on appeal is not deficient performance

unless that claim was plainly stronger than those actually

presented to the appellate court. Id. (citing Smith v. Robbins, 528

U.S. 259, 288 (2000).

In his § 2255 Motion, Petitioner raised five grounds for relief,

all alleging ineffective assistance of counsel at each level of the

proceeding. Two of the grounds alleging ineffective assistance of

trial counsel are consolidated. One of the grounds asserted in the §

2255 Motion—appellate counsel Cramer’s alleged ineffectiveness for

failing to appeal the Court’s assessment of certain criminal history

points—was specifically withdrawn by Petitioner prior to the

evidentiary hearing. The remaining grounds are discussed below.

A. Ground One

Petitioner first argues that attorney McWard provided

ineffective assistance of counsel by failing to properly investigate the

drug amounts. § 2255 Motion 5. According to Petitioner, if

attorney McWard had adequately investigated the drug amounts,

McWard would have determined that Petitioner was only

responsible for 189.3 grams of crack cocaine and would not have

recommended that Petitioner plead guilty to conspiracy to distribute

280 grams. Id. According to Petitioner, McWard advised him that

entering a plea of guilty was “just procedure” and that the drug

amounts could be challenged later. Petitioner asserts he was

prejudiced because, if he had known otherwise, he would have

proceeded to trial and would have only faced a mandatory 10 year

minimum. Id.

At the change of plea hearing, McWard advised the Court that

he reviewed the Government’s evidence with Petitioner, which

Petitioner confirmed. Case No. 12-CR-30019, Tr. at 15 (d/e 80). At

the hearing on the motion to withdraw guilty plea, McWard testified

that he reviewed discovery with Petitioner extensively on the night

before the change of plea hearing. Case No. 12-CR-30019, Tr. at 23

(d/e 78). McWard further advised Petitioner that the drug amount

involved was 280 grams or more and that the charged offense

carried a mandatory minimum of 20 years. Id. at 24-25. At the

hearing on Petitioner’s motion to withdraw his guilty plea, McWard

also testified that he was certain that Petitioner understood that the

offense carried a 20-year mandatory minimum, that McWard told

Petitioner, if he pleaded guilty, he could challenge the drug weight,

but not based on the argument that the weight involved was less

than 280 grams, and he would not have advised Petitioner to lie or

to answer any questions with a ‘yes’ as a matter of procedure. See

Case No. 12-CR-30019, Tr. at 24-26, 28 (d/e 78).

Petitioner cannot show prejudice because he cannot show that

the allegedly deficient advice played a decisive factor in his decision

to plead guilty. See Wyatt, 574 F.3d at 458 (finding that the

allegedly deficient advice did not play a decisive factor in the

defendant’s decision to enter a conditional plea in light of the

statements in his “petition to enter the conditional plea that his

decision to plead was not tied to any particular sentence” and his

statements at the plea hearing showing that his decision to “make

the conditional plea was not predicated upon any specific

sentence”). Petitioner’s claims are belied by his statements at the

change of plea hearing. See Bridgeman v. United States, 229 F.3d

589, 592 (7th Cir. 2000) (finding that the petitioner’s argument that

his counsel’s advice rendered his plea involuntary was belied by his

statements at the plea hearing, which are presumed truthful);

United States v. Schaap, No. 2:12-cr-131, 2:14-cv-87, 2014 WL

4209441 at *6 (N.D. Ind. Aug. 26, 2014) (finding the petitioner’s

claim that counsel was ineffective by “promising a 10 year

maximum term of imprisonment, but likely less,” was “directly

contradicted” by the plea agreement and the change of plea

hearing).

The transcript of the change of plea hearing shows that the

allegedly deficient advice was not a decisive factor in Petitioner’s

decision to plead guilty. Petitioner was advised that, with the filing

of one § 851 Notice, he faced a mandatory minimum sentence of 20

years and up to life in prison. Case No. 12-CR-30019, Change of

Plea Hearing Tr. at 7. Petitioner confirmed that he understood that,

if the § 851 Notice was valid, he would be subject to a 20-year

mandatory minimum. Id. at 8.

Petitioner was told that the Court would calculate Petitioner’s

offense level and criminal history category under the Sentencing

Guidelines and would use those calculations to arrive at an

advisory sentencing range. Id. at 10 (stating that the sentencing

judge “will be using certain advisory Sentencing Guidelines to give

her advice as to where [his] sentence should fall”). Petitioner also

indicated that he understood that “the sentencing court has certain

discretion to go above or below the advisory guidelines but cannot

go below the mandatory minimum.” Id.

At the change of plea hearing, Magistrate Judge Cudmore

asked Petitioner whether anyone, including his attorney, had

promised Petitioner a specific sentence, and Petitioner stated, “No,

sir.” Tr. 11. The transcript of the change of plea hearing

demonstrates that Petitioner’s decision to plead guilty was not

predicated upon any specific sentence or particular application of

the Sentencing Guidelines. See Bethel, 458 F.3d at 718 (finding the

defendant could not show prejudice because the district court

advised the defendant “six or seven different ways that he could not

rely on any particular predictions or discussion about a possible

sentence when he entered his plea”); Thompson v. United States,

732 F.3d 826, 830 (7th Cir. 2013) (finding that “the district court’s

explanation of the sentencing process at [the petitioner’s] plea

colloquy removed any possible prejudice of [his counsel’s] advice”);

United States v. Martinez, 169 F.3d 1049, 1054 (7th Cir. 1999)

(finding that although the defendant “asserts that he would not

have pled guilty but for his attorney’s flawed predictions, his Rule

11 hearing tells a different story. Because of the great weight we

place on these in-court statements, we credit them over his later

claims”).

Related to Petitioner’s argument that McWard failed to

properly investigate the drug weight, Petitioner also argues that

McWard should have filed a motion to suppress evidence to find out

where the prosecutor was getting the drug amounts. Pet.’s Mem.

Law Supp. § 2555 Motion 4, d/e 1-1. A motion to suppress,

however, is not a vehicle for obtaining discovery. Instead, the

purpose of a motion to suppress is to “escape the inculpatory thrust

of evidence in hand, not because its probative force is diluted in the

least by the mode of seizure, but rather as a sanction to compel

enforcement officers to respect the constitutional security of all of

us under the Fourth Amendment.” McCray v. Illinois, 87 S. Ct.

1056, 1060 (1967).

To prevail on a claim of ineffective assistance of counsel based

on the failure to file a motion to suppress, the petitioner must prove

that the motion would have been meritorious. United States v.

Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005). The Sixth

Amendment does not require trial counsel to pursue a futile motion

to suppress. United States v. Jackson, 103 F.3d 561, 575 (7th Cir.

1996).

Petitioner attempted to make a showing in his § 2255 Motion

that a motion to suppress would have been meritorious. See Pet.’s

Mem. Law Supp. § 2255 Motion 6-7. In Petitioner’s post-evidentiary

hearing Memorandum of Points and Authorities (d/e 27), filed with

the benefit of appointed counsel, Petitioner, in arguing for a liberal

construction of Petitioner’s pro se § 2255 Motion, asserts that the

claim that McWard should have filed a motion to suppress is simply

part of Petitioner’s argument that McWard did not effectively

investigate the drug weight, but does not press the argument

further or otherwise attempt to make a showing that a motion to

suppress would have been meritorious. See Purham’s Mem. of

Points & Authorities 5 n.3, d/e 27.

Petitioner also argues that McWard was ineffective for failing to

adequately advise Petitioner of the consequences of entering a guilty

plea. § 2255 Motion 6. Specifically, Petitioner claims McWard did

not advise Petitioner that he could lose acceptance of responsibility

if he frivolously contested the PSR. Id. Petitioner asserts that he

would have proceeded to trial if he knew he would lose acceptance if

he challenged the drug amounts. He also argues that he did not

frivolously contest the drug weights.

As already discussed, Petitioner’s answers to Judge Cudmore’s

questioning at the change of plea hearing demonstrate that he

understood that the conspiracy involved at least 280 grams of crack

cocaine, and that that quantity subjected Petitioner to a 20-year

mandatory minimum. At the hearing on Petitioner’s motion to

withdraw his guilty plea in the criminal case and at the evidentiary

hearing in this case, McWard consistently testified that he advised

Petitioner that he could challenge a drug weight above 280 grams at

sentencing but not attempt to change the charge he pleaded guilty

to by trying to reduce the drug weight below 280 grams.

In order to qualify for the reduction for acceptance of

responsibility, a defendant must “(1) demonstrate sincere remorse

or contrition, (2) truthfully admit the conduct comprising the

offense, and (3) neither falsely deny nor frivolously contest relevant

conduct.” United States v. Eschman, 227 F.3d 886, 891 (7th Cir.

2000). To receive a reduction for acceptance of responsibility,

defendants are not required to “affirmatively admit relevant conduct

beyond the offense of conviction,” and they may make good-faith

challenges to relevant-conduct determinations; but they may not

attempt falsely to deny past activities. United States v. Ghiassi, 729

F.3d 690, 698 (7th Cir. 2013) (emphasis added).

Here, Petitioner not only challenged relevant conduct beyond

the offense of conviction as is his right, he also consistently

contested the offense conduct underlying the guilty plea and

conviction. As McWard testified on multiple occasions and as the

Government argues in its post-evidentiary hearing Argument (d/e

26), the gravamen of Petitioner’s claim regarding acceptance of

responsibility as it relates to challenging the drug quantity is that

Petitioner does not believe he could be held responsible for any drug

conduct by the conspiracy that occurred during the period in which

Petitioner was incarcerated. At most Petitioner’s claim shows that

he misunderstood McWard’s advice regarding challenging the drug

quantity at sentencing, but Petitioner has not established that

McWard’s allegedly defective advice—or failure to advise—fell below

the objective standard of reasonableness or prejudiced Petitioner.

Based on the foregoing, Petitioner is not entitled to relief on ground

one.

C. Ground Two

Petitioner next argues that attorney Vincent was ineffective for

failing to object to the application of the 240-month minimum in

light of Alleyne v. United States, 570 U.S. 99 (2013). § 2255 Motion

8. In Alleyne, the United States Supreme Court held that “any fact

that increases the mandatory minimum [sentence] is an ‘element’

that must be submitted to the jury.” Id. at 103. Petitioner asserts

that the jury, and not the judge, should have determined the

amount of drugs that triggered the mandatory minimum. § 2255

Motion 8. According to Petitioner, if counsel had objected, the

Court may have allowed Petitioner to withdraw his guilty plea or the

issue would have been preserved for appeal. Id.

However, Petitioner waived his right to a jury trial and pleaded

guilty to conspiracy to distribute at least 280 grams of crack

cocaine. As stated by the Seventh Circuit: “An admission is even

better than a jury’s finding beyond a reasonable doubt; it removes

all contest from the case.” United States v. Warneke, 310 F.3d 542,

550 (7th Cir. 2002) (citing United States v. Broce, 488 U.S. 563,

570 (1989)); see also Tennison v. United States, No. 15-1113, 2015

WL 1540990, at *5 (C.D. Ill. Apr. 1, 2015) (finding, in response to

the petitioner’s Alleyne claim, that by pleading guilty, the petitioner

“waived his right to have a jury determine the drug quantity”).

Because the failure to raise a losing argument does not

constitute ineffective assistance of counsel, Petitioner is not entitled

to relief on this ground. See Carrion v. Butler, 835 F.3d 764, 779

(7th Cir. 2016); Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996).

E. Ground Three

Finally, Petitioner argues that appellate counsel Cramer was

ineffective for failing to appeal the additional drug amount finding.

§ 2255 Motion 9. Specifically, Petitioner asserts that Cramer

should have challenged the 126 grams of crack cocaine Petitioner

allegedly agreed with his brother to transport on the basis that the

information was unreliable. Id.; see also Case No. 12-CR-30019,

PSR ¶ 12, d/e 65 (stating that the 126 grams represented two

separate transportations of 63 grams of crack cocaine from Chicago

to Quincy).

At the time Cramer was appointed to represent Petitioner,

Petitioner was accountable for 1.9 kilograms of crack cocaine. On

appeal, Cramer did challenge the drug quantity calculation—

namely, the transportation of 1.8 kilograms of crack cocaine to

Quincy in 2008 included as relevant conduct and which constituted

the bulk of the drug weight for which Petitioner was held

accountable —and prevailed on that issue on appeal. See Purham

I, 754 F.3d at 415-16.

At the evidentiary hearing on Petitioner’s § 2255 Motion,

Cramer testified that during the appeal she was cognizant of the

fact that Petitioner wanted to challenge his guilty plea in a collateral

attack proceeding. Tr. 15-16. Cramer further testified that she had

a conversation with Petitioner concerning which issues were

appropriate to be raised on direct appeal and which issues were

appropriate to preserve for a collateral proceeding. Id. at 24.

According to Cramer—mindful of a future collateral proceeding and

potential issues of waiver—on direct appeal, she focused on

sentencing factors such as the relevant conduct determination or

other enhancements that did not implicate the guilty plea to

conspiring to distribute 280 grams or more of crack cocaine and the

offense conduct underlying the plea. Id. Cramer testified that she

expressed her concern to Petitioner that raising the 126-gram issue

on direct appeal was close to the line and ran the risk of waiver in a

subsequent collateral proceeding. Id. at 31. Cramer further

testified that she advised Petitioner that she did not think it was

advisable to raise the 126-gram issue on direct appeal in light of the

risk of waiver. Id. at 37.

Based on the record and given that appellate counsel need not

raise every nonfrivolous argument on appeal, Cramer made a

strategic decision to omit the 126-gram issue in consideration of a

future collateral proceeding and the potential risks of waiver.

Cramer successfully challenged the drug quantity calculation by

way of challenging the relevant conduct—and prevailed on that

issue—resulting in a lower sentence for Petitioner. Cramer’s

conduct did not fall below the objective standard of reasonableness,

or result in additional prison time for Petitioner, particularly in light

of the plea of guilty to 280 grams which Cramer was aware

Petitioner wished to attack in a collateral proceeding. Petitioner is

not entitled to relief on this ground.

III. CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing § 2255

Proceedings For the United States District Courts, this Court

declines to issue a Certificate of Appealability. A certificate may

issue only if Petitioner has made a substantial showing of the denial

of a constitutional right. 28 U.S.C. § 2253(c)(2). Petitioner 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 adequate to

deserve encouragement to proceed further.” Peterson v. Douma,

751 F.3d 524, 528 (7th Cir. 2014) (quotations and citations

omitted). Because the claims at issue do not satisfy this standard,

the Court denies a Certificate of Appealability on all claims.

IV. CONCLUSION

For the reasons stated, the Motion to Vacate, Set Aside, or

Correct Sentence Pursuant to 28 U.S.C. § 2255 (d/e 1) is DENIED.

The Court also DENIES a Certificate of Appealability on all claims.

Petitioner’s Motions Requesting an Expedited Decision on

Petitioner’s Section 2255 Petition (d/e 31, 32), Petitioner’s

Appointed Counsel’s Motion and Renewed Motion Seeking Interim

Compensation (d/e 30, 33), and Petitioner’s Motion for Status (d/e

35) are DENIED AS MOOT. The United States’ Motion for

Substitution of Counsel (d/e 34) is GRANTED. Assistant United

States Attorney Gregory Gilmore is substituted as counsel for the

United States.

ENTER: December 1, 2020

FOR THE COURT:

/s/Sue E Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE