Williams v. United States

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

LEONARD WILLIAMS, )

)

Petitioner, )

)

v. ) No. 19-CV-3226

)

UNITED STATES OF AMERICA, )

)

Respondent. )

OPINION

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

This matter comes before the Court on Petitioner Leonard

Williams’s Motion to Vacate, Correct, or Set Aside Sentence

Pursuant to 28 U.S.C. § 2255 (d/e 1). Mr. Williams asserts that

his trial counsel provided ineffective assistance by failing to object

to a sentencing enhancement resulting from a prior conviction.

Because Mr. Williams cannot show that his counsel was

ineffective, Petitioner’s Motion is DENIED.

I. BACKGROUND

On February 6, 2018, a four-count indictment was filed in

Case No. 18-CR-30006 (the “Criminal Case”) charging Mr. Williams

and his brother Lonnie Williams with conspiracy to distribute 100

grams or more of heroin in violation of 21 U.S.C. §§ 846, 841(a)(1),

and 841(b)(1)(B), possession of more than 100 grams of heroin with

intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B), and distribution of heroin in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C). See C.D. Ill. Case No. 18-CR-30006, d/e

12. That indictment served as the charging document in the

Criminal Case that resulted in the sentence which Mr. Williams

now seeks to vacate or correct. At Mr. Williams’s initial

appearance in the Criminal Case before United States Magistrate

Judge Tom Schanzle-Haskins, Judge Schanzle-Haskins found that

Mr. Williams qualified for court-appointed counsel and appointed

Assistant Federal Public Defender Douglas Quivey to represent Mr.

Williams. See id., d/e 7. Mr. Quivey then represented Mr.

Williams for the duration of the Criminal Case, which concluded

with Mr. Williams’s sentencing on September 24, 2018.

In the Criminal Case, the Government filed an Information

Charging Prior Offenses on March 7, 2018. See id., d/e 16. The

Information gave notice pursuant to 21 U.S.C. § 851(a)(1) that Mr.

Williams had been convicted of an offense that qualified as a basis

for a sentencing enhancement. Id. The conviction referred to in

the Information is a 2011 Illinois state court conviction for four

counts of delivery of a controlled substance within 1000 feet of a

public park under 720 ILCS 570/407(b)(1). See McLean County

Case No. 2010-CF-859. Mr. Williams was also charged in the

McLean County case with four counts of delivery of a controlled

substance under 720 ILCS 570/401(c)(2), but the “delivery of a

controlled substance” offenses were lesser included offenses that

merged with the offenses for delivery within 1000 feet of a public

park upon Mr. Williams’s conviction. See id.

On April 27, 2018, Petitioner pleaded guilty to one count of

conspiracy to distribute 100 grams or more of heroin pursuant to a

written plea agreement. Criminal Case, d/e 16, ¶ 3. Petitioner’s

plea agreement in the Criminal Case was entered into pursuant to

Rule 11(c)(1)(A) and (B) of the Federal Rules of Criminal Procedure

and provided that the Government would move for a two-level

reduction in offense level for acceptance of responsibility and an

additional one-level reduction for Petitioner timely notifying the

Government of his intention to plead guilty. Id., ¶¶ 11–12. The

Government also promised to recommend a sentence “at the low-

end of the applicable Sentencing Guideline range, as determined

by the Court.” Id., ¶ 15.

Petitioner’s plea agreement also provided, in a section entitled

“Potential Penalties,” that because Petitioner had one prior

qualifying conviction under 21 U.S.C. § 851 the potential penalties

for the charge to which Petitioner was pleading guilty included “Not

less than 10 years and up to life imprisonment.” Id., ¶ 8.

Furthermore, Petitioner agreed to waive his right to appeal from his

sentence, except with a claim of involuntariness or ineffective

assistance of counsel. Id., ¶ 18. Petitioner also waived his right to

collaterally attack his sentence, and specifically his right to

challenge his sentence through a motion brought under 28 U.S.C.

§ 2255, except with a claim of ineffective assistance of counsel.

Id., ¶ 19.

The U.S. Probation Office prepared a revised Presentence

Investigation Report (PSR). Criminal Case, d/e 33. The PSR

calculated Mr. Williams’s total offense level as 34 and his criminal

history category as VI. Id., ¶¶ 41, 51. Accordingly, his advisory

Sentencing Guidelines range was 262 to 327 months’

imprisonment. Id., ¶ 89. The PSR also provided further detail

regarding Mr. Williams’s 2011 conviction in McLean County,

Illinois Circuit Court, Case No. 2010-CF-859, indicating he was

convicted of four counts of unlawful delivery of between 1 and 15

grams of cocaine and four counts of unlawful delivery of between 1

and 15 grams of cocaine within 1,000 feet of Miller Park in

Bloomington, Illinois. Id., ¶ 48.

On September 24, 2018, a sentencing hearing was held in the

Criminal Case. Prior to the sentencing hearing, defense counsel

filed a Commentary on Sentencing Factors recommending a

sentence of 120 months’ imprisonment, to be followed by 8 years’

supervised release. Criminal Case, d/e 38. Attached as exhibits to

the Commentary were a 74-page Mitigation Report prepared by

Mitigation Specialist Kathleen Leifer and a letter of support written

by Mr. Williams’s girlfriend, LaShondra Davis. Id. At the

sentencing hearing, the Court asked Mr. Williams to “affirm or

deny” whether he had been “convicted of manufacture/delivery of a

controlled substance in McLean County, case number 2010-CF-

859” and asked Mr. Williams whether he understood that he could

not challenge the existence of the prior conviction on appeal or in a

post-conviction proceeding if he did not challenge the existence of

a prior conviction before sentencing. Mr. Williams affirmed that he

had been so convicted and that he understood. The Court found

that Mr. Williams’s total offense level under the United States

Sentencing Guidelines was 34 and that the applicable Criminal

History Category was Roman numeral VI, resulting in a Guidelines

sentencing range of 262 to 327 months’ imprisonment. The Court

further found that the applicable statutory minimum term of

imprisonment was 10 years and that the applicable statutory

minimum term of supervised release was 8 years. The Court then

imposed a sentence reflecting the statutory minimums, as

determined: 120 months’ imprisonment, to be followed by an 8-

year term of supervised release. See Criminal Case, d/e 44.

In December 2018, a few months after Mr. Williams’s

sentencing, Mr. Williams’s former counsel Douglas Quivey left the

Federal Public Defender’s office for the Central District of Illinois

and shortly thereafter accepted a position as an Assistant U.S.

Attorney, also in the Central District. In March 2021, Mr. Quivey

began serving as the Acting U.S. Attorney for the Central District of

Illinois. Mr. Quivey is still the Acting U.S. Attorney for this District

as of the date of this Opinion. Mr. Quivey’s transition from public

defender to prosecutor created a potential conflict of interest

because Mr. Quivey is both a key witness in Mr. Williams’s § 2255

case and the head of the Office that would normally be responsible

for opposing Mr. Williams's § 2255 motion. To address this issue,

the U.S. Attorney General on May 7, 2021 appointed a Special

Attorney from outside of the Central District of Illinois under 28

U.S.C. § 515 to oppose Petitioner’s § 2255 motion.

On September 20, 2019, Petitioner filed the instant pro se

Motion to Vacate, Correct, or Set Aside Sentence Pursuant to 28

U.S.C. § 2255 (d/e 1). On January 12, 2021, this Court appointed

counsel to represent Petitioner under the Criminal Justice Act with

respect to Petitioner's § 2255 motion. On May 5, 2021, appointed

counsel filed a supplemental memorandum in support of

Petitioner’s pro se motion. In his § 2255 motion and the

supporting memorandum, Petitioner argues that he received

ineffective assistance of counsel during the negotiation of his plea

agreement in the Criminal Case in 2018. Petitioner argues that his

attorney during the Criminal Case, Douglas Quivey, rendered

constitutionally ineffective assistance when he did not argue that

Petitioner’s prior conviction for possession of cocaine with intent to

distribute could not serve as the basis for a sentencing

enhancement under 21 U.S.C. § 851. According to Petitioner, Mr.

Quivey should have objected to the application of the § 851

sentencing enhancement because the Illinois statute under which

Petitioner was convicted in 2010 applies an overly broad definition

of “cocaine.”

The Government responded to Petitioner’s pro se § 2255

motion on February 3, 2020. Mr. Quivey was employed at the U.S.

Attorney’s Office for the Central District of Illinois at the time but

was not yet the Acting U.S. Attorney and was not assigned to

Petitioner’s habeas case. In its Response (d/e 6), the Government

argues: (1) that Petitioner’s § 2255 motion is barred by the

collateral review waiver in the plea agreement Petitioner entered

into before his 2018 sentencing, and (2) that Mr. Quivey’s

representation of Petitioner in the Criminal Case was not

constitutionally ineffective.

On May 13, 2021, an evidentiary hearing was held on

Petitioner’s Motion. At the evidentiary hearing, Petitioner was

represented by appointed counsel and the Government was

represented by Special Attorney Nathan D. Stump. Mr. Quivey

was called to testify as a witness.

II. LEGAL STANDARD

18 U.S.C. § 2255, “the federal prisoner’s substitute for

habeas corpus,” Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012),

permits a prisoner incarcerated pursuant to an Act of Congress to

request that his sentence be vacated, set aside, or corrected if “the

sentence was imposed in violation of the Constitution or laws of

the United States, or . . . the court was without jurisdiction to

impose such sentence, or . . . the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral

attack.” 28 U.S.C. § 2255(a). Relief under § 2555 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)

(quotation omitted). In considering a § 2255 motion, the Court

reviews the evidence and inferences drawn from the evidence in the

light most favorable to the Government. Carnine v. United States,

974 F.3d 924, 928 (7th Cir. 1992).

A § 2255 motion is not a substitute for a direct appeal. Doe

v. United States, 51 F.3d 693, 698 (7th Cir. 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). “[I]t is generally

proper to raise arguments of ineffective assistance of counsel for

the first time on collateral review in a § 2255 petition because such

claims usually . . . involve evidence outside the record.” Galbraith

v. United States, 313 F.3d 1001, 1007 (7th Cir. 2002).

To succeed on a claim of ineffective assistance, a § 2255

petitioner must show: (1) that his attorney’s performance fell below

an objective standard of reasonableness; and (2) that 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. Id.

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). The 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; see Galowski v. Berge, 78 F.3d 1176,

1180 (7th Cir. 1996). 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 whether “such acts or omissions fall outside the wide

range of professionally competent assistance.” Id.

To satisfy the prejudice prong, a 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.”).

III. ANALYSIS

A. Petitioner Did Not Waive His Right to Challenge His

Sentence Based on Ineffective Assistance of Counsel.

When Mr. Williams pleaded guilty, he received concessions

from Government, including the Government’s agreement that the

Government would recommend a sentence at the low end of the

Sentencing Guidelines. As part of the exchange for these

concessions, Mr. Williams waived the right to collaterally attack his

sentence. Because the right to collaterally attack a conviction or

sentence is a statutory creation, it “can be waived.” United States

v. Wilkozek, 822 F.3d 364, 367 (7th Cir. 2016). Moreover, “[i]t is

well-settled that waivers of direct and collateral review in plea

agreements are generally enforceable.” Hurlow v. United States,

726 F.3d 958, 964 (7th Cir. 2013); see Oliver v. United States, 951

F.3d 841, 846 (7th Cir. 2020) (“Finality matters in plea

agreements, especially when the parties have negotiated for it

expressly.”).

However, Mr. Williams is not pursuing a stand-alone claim

that the application of the § 851 sentencing enhancement was

erroneous. Rather, Mr. Williams’s claim is that he received

ineffective assistance of counsel during and before his sentencing

hearing. Such a claim was expressly excluded from the collateral

attack waiver. See Criminal Case, d/e 18, ¶¶ 19–20; Hurlow, 726

F.3d at 965 (“A direct or collateral review waiver does not bar a

challenge regarding the validity of a plea agreement (and

necessarily the waiver it contains) on grounds of ineffective

assistance of counsel; [defendant] need not have alleged that his

counsel was ineffective in the negotiation of the waiver provision of

his plea agreement specifically.”) Accordingly, the Court finds that

Mr. Williams’s claim of ineffective assistance of counsel is not

barred by the collateral attack waiver in his plea agreement.

B. Mr. Quivey’s Performance During the 2018 Criminal Case

Was Constitutionally Adequate.

Prior to and during Mr. Williams’s 2018 sentencing hearing,

the Government, the Court, the U.S. Probation Office, and Mr.

Quivey all assumed that Petitioner’s 2011 conviction under 720

ILCS 570/407(b)(1) was a predicate “felony drug offense”1 that

triggered 21 U.S.C. § 841(b)(1)(B)’s sentencing enhancement. At

the time of Mr. Williams’s sentencing, § 841(b)(1)(B) provided for a

minimum sentence of five years’ imprisonment and a 4-year term

of supervised release for any person who possessed more than 100

grams of heroin with intent to distribute. For defendants with a

prior “felony drug offense,” however, the statutory minimum

sentence was increased to ten years’ imprisonment with an 8-year

mandatory minimum term of supervised release. At the 2018

1 Under the current version of 21 U.S.C. § 841(b)(1)(B) a “serious

drug felony” is needed to trigger the enhancement. However, at the

time of Mr. Williams’s sentencing, only a “felony drug offense,” as

defined in 21 U.S.C. § 802(44), was needed.

sentencing hearing, the Court found that Mr. Williams had a prior

felony drug offense and determined that the ten-year and eight-

year statutory minimums for imprisonment and supervised release

applied.

The categorical approach is used to determine whether a

state law drug conviction is a felony drug offense. United States v.

Elder, 900 F.3d 491, 501 (7th Cir. 2018). See also Shular v.

United States, 140 S. Ct. 779 (2020). “The categorical approach

disregards the facts underlying a prior conviction, focusing instead

on the statutory definition of the offense.” United States v.

Edwards, 836 F.3d 831, 834–35 (7th Cir. 2016). Courts must

compare the elements of the state statute to the conduct

proscribed by the federal definition. United States v. Franklin, 895

F.3d 954, 958 (7th Cir. 2018). If the statutory definition is the

same as or narrower than the federal definition, the offense can be

treated as a predicate offense. See Edwards, 836 F.3d at 835. “If

state law defines the offense more broadly than the federal

definition, the prior conviction doesn’t qualify as a [predicate

offense],” regardless of the defendant’s actual conduct. Id. at 833.

In 2020, the Seventh Circuit applied the categorical approach

in United States v. Ruth, 966 F.3d 642, and concluded that

Illinois’s definition of “cocaine,” which includes positional isomers

of cocaine, was broader than the federal definition of “cocaine,”

which does not include positional isomers. See id. at 650. The

Ruth court further held that this discrepancy rendered the Illinois

statute 720 ILCS 570/401(c)(2) “overbroad” such that the

defendant’s prior cocaine conviction was not a predicate “felony

drug offense” under 21 U.S.C. § 841(b)(1)(C) and that the district

court had, therefore, erred by applying the sentencing

enhancement.

Mr. Williams, like the defendant in Ruth, was convicted under

720 ILCS 570/401(c)(2) for cocaine trafficking. Unlike the

defendant in Ruth, Mr. Williams’s § 401(c)(2) convictions were

lesser included offenses that merged into his convictions for

delivery of cocaine within 1,000 feet of a public park under 720

ILCS 570/407(b)(1). However, the two statutes rely on the same

overbroad definition of cocaine, see 720 ILCS 570/206(b)(4), so

Ruth’s holding that a conviction under § 401(c)(2) cannot serve as

a predicate felony drug offense applies to Mr. Williams’s

convictions under § 407(b)(1).

Like the district court in Ruth, this Court erred when it

applied a sentencing enhancement based on Mr. Williams’s prior

Illinois cocaine trafficking conviction. But where the defendant in

Ruth raised the overbroadness argument and objected to the

enhancement at his sentencing, preserving the argument for

appeal, Mr. Williams agreed in his plea agreement and again at his

sentencing hearing that the enhancement applied and Mr.

Williams did not appeal his sentence. Mr. Williams also waived his

right to collaterally attack his sentence except via a claim for

ineffective assistance of counsel. Therefore, in addition to showing

that he was incorrectly sentenced, Mr. Williams must show that

his incorrect sentence was the result of a performance by Mr.

Quivey that “fell below an objective standard of reasonableness

when measured against ‘prevailing professional norms.’” Osagiede

v. United States, 543 F.3d 399, 408 (7th Cir. 2008) (quoting

Strickland, 466 U.S. at 689).

Mr. Williams cannot make this showing. The evidence

presented shows that, in acceding to the § 851 enhancement, Mr.

Quivey was acting in accordance with the generally accepted best

practices for defense counsel at the time. Mr. Williams has not

indicated any instance from before September 24, 2018 in which a

defense attorney actually raised the overbroadness argument that

he argues Mr. Quivey should have raised. Nor has Mr. Williams

shown that Mr. Quivey was required to invent the isomer

overbroadness argument and bring it for the first time in order to

provide effective assistance. Having considered the totality of the

circumstances present in the Criminal Case, the Court concludes

that Mr. Quivey’s performance was constitutionally adequate.

At the evidentiary hearing, Mr. Quivey confirmed that he had

“a practice of reviewing [any § 851 enhancement notice filed by the

Government] with the client and reviewing any avenues of ways to

challenge it” and that he would have followed this practice in Mr.

Williams’s case. See d/e 24, p. 12. Mr. Williams does not

challenge this assertion and has not suggested that Mr. Quivey

failed to review the possibility of challenging the § 851

enhancement. Nor does Mr. Williams suggest that Mr. Quivey’s

representation was inadequate for any reason other than the

failure to raise the categorical approach challenge raised in Ruth.

Moreover, the evidence before the Court regarding Mr. Quivey’s

performance in the Criminal Case indicates that Mr. Quivey did an

excellent job. The sentencing commentary filed by Mr. Quivey on

Mr. Williams’s behalf in the Criminal Case was diligently and

intelligently prepared, and Mr. Quivey’s performance at the

sentencing hearing was exemplary. Furthermore, the strategy that

Mr. Quivey chose to pursue by relying on a mitigation report and

character testimony and emphasizing the nonviolent nature of Mr.

Williams’s criminal history secured Mr. Williams a sentence of only

120 months’ imprisonment, significantly less than half of the

Guidelines range of 262 to 327 months. Nevertheless, Mr.

Williams insists that Mr. Quivey was ineffective because he did not

invent the categorical approach argument that eventually prevailed

in the Seventh Circuit.

In Bridges v. United States, 991 F.3d 793 (7th Cir. 2021), the

Seventh Circuit held that, while “[d]efense attorneys . . . are

generally not obliged to anticipate changes in the law,” “there are

some circumstances where [counsel] may be obliged to make, or at

least to evaluate, an argument that is sufficiently foreshadowed in

existing case law.” Id. at 804. In Bridges, however, the need to

investigate whether a viable categorical approach argument existed

was “especially pronounced” because the relevant federal definition

had been amended and made narrower months before the offense

was committed. Id. at 805. Additionally, the argument that

defense counsel failed to raise in Bridges had already been

successfully raised in a directly on-point published decision out of

the Tenth Circuit months before the defendant signed his plea

agreement, so defense counsel would have had only to discover the

argument through research rather than to invent the argument

himself. Id. Furthermore, the district court in Bridges had denied

the defendant’s motion without holding an evidentiary hearing,

which is appropriate only when the motion and record

“conclusively show that the prisoner is entitled to no relief.” Id. at

799 (quoting 28 U.S.C. § 2255). The Seventh Circuit held that the

defendant might possibly be entitled to habeas relief and remanded

for an evidentiary hearing rather than a resentencing. Id. at 797.

Here, the relevant federal definition of “cocaine” and the

relevant Illinois definition of “cocaine” have both remained

unchanged since the 1980s. See Pub. L. No. 98-473 § 507(b)

(1984); Act of Sept. 8, 1985, § 1, 1985 Ill. Laws 2288, 2292–93.

The change in the law that would occur in 2020 was the product of

a new judicial approach to the interpretation of the relevant

statutes, rather than changes in the statutes themselves, and

there is no reason to suppose that Mr. Quivey was better

positioned to predict the change than any of the hundreds of

diligent and competent defense attorneys who concluded that

Illinois cocaine trafficking convictions were “felony drug offenses”

under § 841(b)(1)(B) in prior years.

Mr. Quivey should have “been on the lookout for categorical

approach problems,” see Bridges, 991 F.3d at 803, but even if he

had been there is no reason to suppose that he would have been

able to invent the complex, novel, and counter-intuitive “isomers”

argument that eventually prevailed in Ruth. In Bridges, the

winning argument was waiting to be discovered in a published

Tenth Circuit opinion, but there was no directly on-point decision

in any jurisdiction in which Mr. Quivey could have discovered the

Ruth argument. A somewhat analogous argument had been

successful in the Ninth Circuit in Lorenzo v. Sessions, 902 F.3d

930 (9th Cir., August 29, 2018) opinion withdrawn on denial of

reh'g sub nom. Lorenzo v. Whitaker, 913 F.3d 930 (9th Cir. 2019),

and opinion superseded on denial of reh'g sub nom. Lorenzo v.

Whitaker, 752 F. App'x 482 (9th Cir. 2019). However, Lorenzo

involved a different state and federal statute than the statutes at

issue in the Criminal Case and involved arguments about isomers

of methamphetamine rather than isomers of cocaine. See id. at

934–38. Anticipating that the Seventh Circuit would adopt the

isomer overbroadness argument and apply it to the Illinois

definition of “cocaine” would have required Mr. Quivey to anticipate

a change in the law, which defense attorneys are not typically

required to do. See Bridges, 991 F.3d at 804.

The Federal Public Defender’s Office sent an e-mail to the

mailing list FPD_ILC@yahoogroups.com on August 17, 2018

summarizing the holding in United States v. Elder, 900 F.3d 491

(7th Cir. 2018), and reminding defense counsel to “Remember to

Check those Prior Convictions!” See d/e 23. Mr. Quivey would

have received this e-mail and should therefore have been aware of

the Elder decision. That decision involved an Arizona statute that

criminalized conduct relating to “dangerous drug[s]” and was

overbroad because it defined “dangerous drugs” to include

propylhexedrine and scopolamine, neither of which were included

in the corresponding federal statute. See Elder, 900 F.3d. at 495–

96. To realize that the statute under which Mr. Williams had been

convicted of cocaine trafficking was overbroad, Mr. Quivey would

have had to combine the categorical approach followed in Elder

with a modified version of the methamphetamine isomers

argument that the Ninth Circuit accepted in Lorenzo.

In short, while all of the elements of a winning legal argument

regarding the overbroadness of Illinois’s definition of “cocaine” were

available at the time of Mr. Williams’s sentencing, putting them all

together for the first time would have required an extraordinary

display of imagination, scientific knowledge, and legal insight and

acumen. A defense attorney need not provide extraordinary

representation to be effective, and a defense attorney representing

a client before a district court is not expected to devote the same

amount of time to researching ingenious new defenses that a law

professor or an appellate defense attorney might. It would not be

realistic to demand that trial counsel anticipate the Seventh

Circuit’s holding in Ruth without access to any of the briefing or

expert scientific testimony that the Seventh Circuit relied on in

reaching its decision. To be constitutionally effective, a defense

attorney need only deliver a performance that satisfies “an

objective standard of reasonableness when measured against

‘prevailing professional norms.’” Wyatt v. United States, 574 F.3d

455, 457-58 (7th Cir. 2009) (citing Strickland v. Washington, 466

U.S. 668, 687-88 (1984)). Here, all of the available evidence shows

that Mr. Quivey acted in accordance with the prevailing

professional norms when he checked the § 851 enhancement and

concluded that it could not be successfully challenged. Mr.

Quivey’s representation of Mr. Williams during the Criminal Case

was, therefore, constitutionally adequate.

Because Mr. Quivey provided adequate representation, Mr.

Williams’s § 2255 motion must be denied. This result does not

prevent Mr. Williams from requesting a modification of his

sentence through a motion for sentence reduction pursuant to 18

U.S.C. § 3582(c)(1)(A) due to “extraordinary and compelling

reasons” including the fact that his sentence is the result of this

Court’s assumption at sentencing as to the applicable statutory

minimum term of imprisonment.

IV. CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Cases

requires the Court to issue or deny a certificate of appealability

when it enters a final order adverse to a petitioner. To obtain a

certificate of appealability, Petitioner must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c). For such a showing to exist, reasonable jurists must be

able to “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted). Petitioner has not made a substantial

showing of the denial of a constitutional right, and the Court

declines to issue Petitioner a certificate of appealability.

V. CONCLUSION

For the reasons stated above, Petitioner Leonard Williams’s

Motion to Vacate, Correct, or Set Aside Sentence Pursuant to 28

U.S.C. § 2255 (d/e 1) is DENIED. Any pending motions in this

matter are DENIED as MOOT, any pending deadlines are

TERMINATED, and any scheduled settings are VACATED. This

case is CLOSED.

ENTER: October 22, 2021

FOR THE COURT:

s/Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE