Liggins v. United States

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

URBANA DIVISION

TERRANCE LIGGINS, )

)

Petitioner, )

)

v. ) Case No. 2:19-cv-02129-SLD

)

UNITED STATES OF AMERICA, )

)

Respondent. )

ORDER

Before the Court are Petitioner Terrance Liggins’s pro se Motion Under 28 U.S.C.

§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Pro Se 2255

Motion”), ECF No. 1, and counseled Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255

(“Counseled 2255 Motion”), ECF No. 7. For the reasons that follow, the motions are DENIED

IN PART.

BACKGROUND1

On May 2, 2017, a grand jury returned a two-count indictment against Petitioner charging

him with one count of possessing 500 grams or more of a mixture or substance containing

cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and one

count of possessing a firearm after having previously been convicted of a crime punishable by

more than one year of imprisonment in violation of 18 U.S.C. § 922(g)(1). Indictment 1–2, Cr.

ECF No. 1. Counsel was appointed to represent Petitioner at first, see Cr. May 8, 2017 Min.

Entry (appointing the Federal Public Defender’s office); Cr. May 17, 2017 Text Orders

(appointing alternate counsel after the Federal Public Defender’s office withdrew due to a

1 References to Petitioner’s underlying criminal case, United States v. Liggins, 2:17-cr-20032-SLD-EIL-1, take the

form: Cr. ___.

conflict), but Petitioner later retained attorney James Todd Ringel to represent him, see Not.

Appearance, Cr. ECF No. 15.

On November 27, 2017, Petitioner pleaded guilty to the cocaine charge pursuant to a

written plea agreement. See Cr. Nov. 27, 2017 Min. Entry; Plea Agreement, Cr. ECF No. 17.

Under the plea agreement, the Government agreed to move to dismiss the firearm charge at the

time of sentencing. Plea Agreement ¶ 4. Petitioner agreed to cooperate with law enforcement in

exchange for the Government informing the Court of the extent of his cooperation and

potentially moving for a sentence reduction. See id. ¶¶ 15–19. Under the written agreement

Petitioner waived: 1) his right to require the Government to file an information stating any prior

felony drug convictions that it would rely on to seek an enhanced sentence, id. ¶ 27; 2) his “right

to appeal any and all issues relating to th[e] plea agreement and conviction and to the sentence,

including any fine or restitution, within the maximum provided in the statutes of conviction, and

the manner in which the sentence . . . was determined,” other than a “claim of involuntariness or

ineffective assistance of counsel,” id. ¶ 28; and 3) his “right to challenge any and all issues

relating to [his] plea agreement, conviction and sentence, including any fine or restitution, in any

collateral attack, including, but not limited to, a” motion under 28 U.S.C. § 2255, “so long as the

sentence is within the maximum provided in the statutes of conviction, except only those claims

which relate directly to the negotiation of this waiver itself, involuntariness, and to the

ineffective assistance of counsel,” id. ¶ 29.

Sentencing was set for April 6, 2018. See Cr. Nov. 27, 2017 Min. Entry. On March 16,

2018, Ringel moved to withdraw from the case, stating that Petitioner had failed to meet his

obligations to Ringel. Mot. Withdraw ¶ 2, Cr. ECF No. 20. Judge Colin S. Bruce, then

presiding over the case, denied the motion, Cr. Apr. 2, 2018 Min. Entry, but granted Petitioner’s

subsequent motion for a continuance of the sentencing hearing, Cr. Apr. 3, 2018 Text Order.

United States Probation prepared an initial presentence investigation report (“PSR”), Cr.

ECF No. 19, and a revised PSR, Cr. ECF No. 21, in advance of sentencing. In the revised PSR,

the probation officer calculated that the offense involved 22.75 kilograms of cocaine. Revised

PSR ¶ 10. Accordingly, Petitioner’s base offense level was listed as 32. Id. ¶ 17. The probation

officer assigned a two-level increase for possessing a firearm, id. ¶ 18, and a two-level increase

for maintaining a premises for the purpose of distributing cocaine, id. ¶ 19. The probation

officer found that Petitioner was a career offender under the Sentencing Guidelines due to prior

felony convictions for aggravated battery and possession of a controlled substance with intent to

deliver. Id. ¶ 24. Based on a statutory maximum sentence of forty years, an offense level of 34

would apply to a career offender; because Petitioner’s otherwise applicable offense level, 36,

was higher, the probation officer applied that level. Id. Applying a three-level reduction for

acceptance of responsibility, the probation officer found that Petitioner’s total offense level was

33. Id. ¶¶ 25–27. Based on that offense level and Petitioner’s criminal history category of VI,

id. ¶ 35, the PSR listed his Sentencing Guidelines custody range as 235 to 293 months, id. ¶ 63.

Petitioner filed objections to the revised PSR. See id. at 20–22. First, he asserted that the

calculation of the amount of cocaine involved in the offense was based on an incorrect

representation of his statements to law enforcement. Id. at 20–21. Second, he asserted that he

was not a career offender because the prior offenses that were relied upon were too old to qualify

as predicate offenses. Id. at 22. The Government filed a motion to correct the revised PSR,

requesting—among other corrections—that the PSR reflect that Petitioner had two prior felony

drug offenses which meant he was subject to an enhanced sentence under 21 U.S.C.

§ 841(b)(1)(B). Mot. Correct 2, Cr. ECF No. 25. Identifying the correct statutory custody range

as ten years to life imprisonment, the Government argued that Petitioner’s offense level under

the career offender Guidelines would accordingly be 37. Id.

The sentencing hearing was held on May 11, 2018 before Judge Bruce. See Cr. May 11,

2018 Min. Entry. At the hearing, Ringel “agree[d] with each recommendation” for corrections

made by the Government. See Sentencing Hr’g Tr. 3:2–8, Cr. ECF No. 36. And he withdrew

the objections to the revised PSR, explaining that “[o]ne [wa]s not an objection” and the other

“would basically compete with an agreement [they] ha[d] with the [G]overnment.” Id. at 4:4–9.

Petitioner affirmed that he spoke with Ringel about withdrawing the objections and agreed with

withdrawing the objections. See id. at 5:10–15. He also denied having any other objections

counsel was unwilling to make. Id. at 5:7–9. The Court adopted the revised PSR with the

corrections made to it by the Government. Id. at 10:7–11. The corrections resulted in Petitioner

having an adjusted offense level of 34 and a criminal history category of VI and, therefore, an

advisory Guidelines range for custody of 262 to 327 months. Id. at 10:11–13; Am. PSR ¶ 63, Cr.

ECF No. 26.

The Government requested a downward departure from the low end of the Guidelines

range for Petitioner’s substantial assistance, recommending a reduction of between ten and

twenty percent. Sentencing Hr’g Tr. 11:17–12:2. Ringel requested that Judge Bruce consider

giving a more than ten percent reduction and offered brief additional comments, highlighting that

Petitioner accepted responsibility, that Petitioner assisted the Government despite believing his

family to be in harm’s way, and that Petitioner was not selling drugs but instead “was basically a

storage facility” for drugs. Id. at 13:22–15:5. Judge Bruce granted the Government’s request for

a downward departure, “giving [Petitioner] more than 10 percent off,” and sentenced Petitioner

to 216 months of imprisonment. Id. at 22:10–18; Judgment 2, Cr. ECF No. 27. No appeal was

filed.

On May 9, 2019,2 Petitioner filed the Pro Se 2255 Motion asserting an ineffective

assistance of counsel claim primarily based on counsel’s failure to make objections to the revised

PSR; a claim that his aggravated battery conviction does not qualify as a career offender

predicate; and a claim that his due process rights were violated by Judge Bruce’s bias, as

evidenced by ex parte communications Judge Bruce had with members of the United States

Attorney’s Office in the Central District of Illinois. Pro Se 2255 Mot. 4–8.3 On January 14,

2021, the case was reassigned to this Court. See Jan. 14, 2021 Text Order. The Court appointed

counsel to represent Petitioner, see Feb. 2, 2021 Text Order, and counsel filed the Counseled

2255 Motion, which is intended to supplement rather than replace the Pro Se 2255 Motion, see

Counseled 2255 Mot. 1. In the Counseled 2255 Motion, Petitioner adds a claim that Judge Bruce

failed to recuse himself under 18 U.S.C. § 455(a). Id. at 13. The Government opposes both the

Pro Se 2255 Motion and the Counseled 2255 Motion, arguing that Petitioner’s nonconstitutional

claim that Judge Bruce violated § 455(a) is not cognizable in a § 2255 proceeding, that Petitioner

waived his right to bring many of his claims in a collateral attack under his plea agreement, that

Petitioner procedurally defaulted his claims, and that Petitioner’s ineffective assistance of

counsel claims are without merit. See Resp. 16, ECF No. 8. No reply was filed.

2 For an inmate confined in an institution, his paper is deemed filed when deposited in his institution’s mailing

system. Cf. Rule 3(d), Rules Governing § 2255 Proceedings (“A paper filed by an inmate confined in an institution

is timely if deposited in the institution’s internal mailing system on or before the last day for filing.”). Petitioner

declares that he placed the motion in the prison mailing system on May 9, 2019. Pro Se 2255 Mot. 13.

3 For clarity, the Court uses the CM/ECF-generated page numbers because the first page of the 2255 Motion is

marked as page two.

DISCUSSION

I. Legal Standard

A prisoner in federal custody may move the court that imposed his sentence to vacate, set

aside, or correct it. 28 U.S.C. § 2255(a). “[R]elief under § 2255 is an extraordinary remedy

because it asks the district court essentially to reopen the criminal process to a person who

already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521

(7th Cir. 2007). Accordingly, such relief “is available only when the ‘sentence was imposed in

violation of the Constitution or laws of the United States,’ the court lacked jurisdiction, the

sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral

attack.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C.

§ 2255(a)).

II. Analysis

Petitioner’s claims can be separated into substantive claims—his due process and

§ 455(a) claims and his claim that his aggravated battery conviction does not qualify as a career

offender predicate—and ineffective assistance of counsel claims. The Court will address the

substantive and ineffective assistance of counsel claims separately.

a. Substantive Claims are Barred by the Collateral Attack Waiver

Petitioner’s plea agreement clearly contains a waiver of his right to collaterally attack his

conviction and sentence with limited exceptions. See Plea Agreement ¶ 29. The Government

argues that the collateral attack waiver covers Defendant’s substantive claims and should be

enforced. See Resp. 34–37.

“It 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).4 If a

collateral review waiver is voluntary and knowing, it is generally enforceable. Dowell v. United

States, 694 F.3d 898, 902 (7th Cir. 2012). “There are only limited instances when [the court]

will not enforce a knowing and voluntary waiver of . . . collateral review.” Id. Waivers are

unenforceable, for example, if “the district court relied on a constitutionally impermissible factor

(such as race)” in determining the sentence or “the sentence exceeded the statutory maximum.”

Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011) (quotation marks omitted). Waivers

are also unenforceable “against claims that counsel was ineffective in the negotiation of the plea

agreement.” Hurlow, 726 F.3d at 964.

As Petitioner failed to mention his waiver in either of his motions and did not file a reply,

he has not argued that the waiver was not entered into voluntarily and knowingly. And he

represented in the plea agreement itself that it was entered into voluntarily and knowingly. See

Plea Agreement ¶ 30 (acknowledging that Petitioner “ha[d] not been coerced, threatened,

intimidated, or in any other way involuntarily persuaded to waive [his] rights” and that he was

“waiving those rights because [he] personally believe[d] it [wa]s in [his] best interest”); id. ¶ 38

(similar). While Petitioner vaguely asserts that counsel misadvised him regarding his plea and

potential sentence, Pro Se 2255 Mot. 4, there are no allegations that there was ineffective

assistance with respect to negotiation of the waiver or the plea agreement.

And, again, as Petitioner has not addressed the waiver, he has not identified any other

reason for the Court not to enforce his waiver. The Court finds no exception identified by the

4 The Seventh Circuit analyzes waivers of the right to appeal and to bring a collateral attack similarly. See, e.g.,

Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) (“Our reasons for upholding the voluntariness

requirement in the context of waivers of direct appeal rights apply with equal force to the right to bring a collateral

attack pursuant to § 2255.”).

Seventh Circuit applies. There is no allegation that the sentence was based on a constitutionally

prohibited factor like race or gender or that the sentence exceeds the statutory maximum. United

States v. Adkins, 743 F.3d 176, 192 (7th Cir. 2014). And though “[t]here are at least some due

process exceptions to a waiver of appellate review,” id., in the absence of any argument from

Petitioner that there is an exception for a claim that a judge was actually biased against a

defendant, see Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (“Due process guarantees an

absence of actual bias on the part of a judge . . . .” (quotation marks omitted)), the Court is not

inclined to find one exists. Indeed, other courts have enforced waivers against judicial bias

claims. See United States v. Carver, 349 F. App’x 290, 292–94 (10th Cir. 2009); Anderson v.

United States, No. CV 12-1025 MCA/WPL & CR 10-0086 MCA, 2013 WL 12164686, at *5–6

(D.N.M. Mar. 7, 2013), adopted by Anderson v United States, No. CV 12-1025 MCA/WPL &

CR 10-0086 MCA, 2015 WL 12859352, at *3–4 (D.N.M. Aug. 17, 2015).

Even if there were such an exception, the Court finds that Petitioner has not shown that

Judge Bruce was biased against him. “Due process requires ‘a fair trial in a fair tribunal, before

a judge with no actual bias against the defendant or interest in the outcome of his particular

case.’” Shannon v. United States, 39 F.4th 868, 883 (7th Cir. 2022) (quoting Bracy v. Gramley,

520 U.S. 899, 904–05 (1997)). A due process claim can be proved by evidence of the judge’s

actual bias or by showing that “the probability of actual bias on the part of the judge or

decisionmaker is too high to be constitutionally tolerable.” Id. (quoting Rippo v. Baker, 137 S.

Ct. 905, 907 (2017)). Petitioner’s argument that Judge Bruce was biased against him is based on

ex parte emails Judge Bruce exchanged with the United States Attorney’s Office in the Central

District of Illinois. See, e.g., Counseled 2255 Mot. 15–16. These emails have been detailed and

summarized elsewhere. See Shannon, 39 F.4th at 883 (citing In re Complaints Against District

Judge Colin S. Bruce, Nos. 07-18-90053 & 07-18-90067 (7th Cir. Jud. Council May 14, 2019),

http://www.ca7.uscourts.gov/judicial-conduct/judicial-conduct_2018/07_18-90053_and_07-18-

90067.pdf).

The Seventh Circuit has decided a few cases involving due process bias claims based on

Judge Bruce’s emails which are instructive here. In United States v. Williams, 949 F.3d 1056,

1061–63 (7th Cir. 2020), the court held that Judge Bruce presiding over a defendant’s trial did

not violate the defendant’s due process rights where the defendant relied primarily on the ex

parte emails but the emails did not concern the defendant’s case. It noted that the Special

Committee appointed by the Judicial Council of the Seventh Circuit to review complaints against

Judge Bruce related to the ex parte emails “found no evidence and received no allegation that

Judge Bruce’s conduct or ex parte communications impacted any of his rulings or advantaged

either party.” Id. at 1061–62 (quotation marks omitted). Moreover, the court noted that though

the communications exposed a preexisting relationship with members of the United States

Attorney’s Office, such a relationship “alone does not create a due process violation.” Id. at

1062. It found that the defendant had “presented no evidence to rebut th[e] presumption” that

“judges rise above . . . potential biasing influences.” Id. (quotation marks omitted). Like in

Williams, the emails here do not concern Petitioner or his case, see Counseled 2255 Mot. 16,

and, moreover, Petitioner makes no allegation that Judge Bruce decided an issue against him or

made any comments in his case indicating a bias. Cf. Williams, 949 F.3d at 1061–62 (denying

the defendant’s argument that Judge Bruce stating on the record in the defendant’s case that he

did not find the prosecutor to be sneaky showed bias in favor of the Government).

In Shannon, the Seventh Circuit did find that Judge Bruce’s participation in a defendant’s

sentencing hearing, as opposed to only his trial, may warrant a different result under the due

process clause because judges have considerable discretion at sentencing. Shannon, 39 F.4th at

884–86. In that case, Judge Bruce made comments at sentencing that the court concluded could

have been interpreted as a warning that if the defendant appealed, he would impose a harsher

sentence. Id. at 886–87. Though it ultimately declined to rule on whether there was a due

process violation, the Seventh Circuit appeared to be troubled by the combination of the ex parte

emails and the comments. See id. at 884 (declining to resolve the constitutional issue and instead

remanding for resentencing under the court’s supervisory authority). But here, there is no similar

comment that would lend itself to a finding that Judge Bruce was biased against Petitioner.

Instead, Petitioner is relying on the ex parte emails alone. The Court thus finds that Petitioner

has failed to show either actual bias or a risk of bias so high that it violates due process.

The Court will enforce the collateral attack waiver against the substantive claims:

Petitioner’s due process actual bias claim, the claim that Judge Bruce violated § 455(a) by failing

to recuse himself due to an appearance of bias, and the claim that Petitioner’s aggravated battery

conviction does not qualify as a career offender predicate. With respect to the due process claim,

the Court rules in the alternative that Petitioner has failed to show that Judge Bruce was biased

against him.

b. Ineffective Assistance of Counsel Claims

Because the waiver explicitly excludes ineffective assistance of counsel claims, Plea

Agreement ¶ 29, the Court will address those claims on the merits.

i. Legal Background

The Sixth Amendment guarantees criminal defendants the right to the effective assistance

of counsel. U.S. Const. amend. VI. Claims of ineffective assistance of counsel are subject to the

two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). This test requires a

petitioner to show that his counsel’s performance “fell below an objective standard of

reasonableness” and that he suffered prejudice as a result. Id. at 688, 692. The court applies “a

strong presumption that decisions by counsel fall within a wide range of reasonable trial

strategies.” United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (quotation marks

omitted). The petitioner “must rebut this presumption by proving that his attorney’s

representation was unreasonable under prevailing professional norms and that the challenged

action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). To

demonstrate prejudice, the 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.

ii. Petitioner’s Claims

Petitioner claims Ringel provided constitutionally ineffective assistance of counsel on the

following bases: “[l]ack of interest in the case,” “[m]isadvising regarding the plea and potential

sentence,” “making mistakes with regard to the [PSR] . . . and his absense [sic] while [Petitioner]

was doing the [PSR] report,” failing to raise objections to the revised PSR “[s]uch as challenging

the career offender enhancement and also the relevant conduct,” and trying to withdraw days

before the sentencing hearing was scheduled. Pro Se 2255 Mot. 4–5; Counseled 2255 Mot. 4–5

(asserting that counsel was ineffective for failing to challenge a sentencing enhancement).

1. Lacked Interest, Absence, Withdrawal

The Court easily concludes that Petitioner’s claims that Ringel lacked interest in the case,

was absent while Petitioner “was doing the [PSR] report” (by which he presumably means being

interviewed by a probation officer), and tried to withdraw days before the sentencing hearing are

without merit. The claim that Ringel lacked interest lacks sufficiently specific allegations to

warrant either an evidentiary hearing or relief. See Martin v. United States, 789 F.3d 703, 706

(7th Cir. 2015) (holding that no hearing is required “if the petitioner makes allegations that are

vague, conclusory, or palpably incredible, rather than detailed and specific” (quotation marks

omitted)). And Petitioner identifies no prejudice he suffered by any of these alleged errors.

2. Erroneous Advisement Regarding Plea and Potential Penalties

Petitioner’s claims that Ringel misadvised him regarding the plea and potential sentence

are also easily resolved. The only specific allegations Petitioner makes regarding this assertion

are that Ringel “advised that if [he] took the current plea, [he] would not be sentenced as a career

offender[] which nearly triple[d] his . . . sentence,” and that Ringel “told [him] if [he] didn’t

agree to withdraw any and all objections and challenges that [his] plea would be voided.” Pro Se

2255 Mot. 5.

As to Petitioner’s first allegation, being sentenced as a career offender did not triple his

sentence; instead, it only raised his offense level by one. See Am. PSR ¶¶ 23–24. Moreover, this

claim is belied by the record. The plea agreement, which Petitioner signed, representing that he

read and understood it, see Plea Agreement ¶ 38, specifically notes that the Court would

calculate Petitioner’s offense level, see id. ¶ 21. The plea agreement contains no promise

regarding application of the career offender guidelines.5 See id.; see also id. ¶ 38 (affirming that

no other promises, agreements, or understandings were made outside the plea agreement).

As to Petitioner’s second allegation, that Ringel told him that failing to withdraw his

objections to the revised PSR would void his plea agreement, he fails to meet one or both prongs

of the Strickland test. The plea agreement allows the Government to declare the plea agreement

5 There is a provision stating the parties understood Petitioner was not an Armed Career Criminal under 18 U.S.C.

§ 924(e)(1). See Plea Agreement ¶ 22. Perhaps this is what Petitioner is referring to, but being a career offender

under the Guidelines is not the same as being an Armed Career Criminal. Petitioner was not sentenced as an Armed

Career Criminal.

void if Petitioner violates its terms. Id. ¶ 31. This would allow the Government to reinstate the

charge it agreed to dismiss or file additional charges against Petitioner. Id. One of the

objections Ringel initially brought on Petitioner’s behalf was to relevant conduct. Petitioner

alleged that, as opposed to what was contained in the law enforcement report of an interview

with him, he only began storing cocaine a month before his arrest. See Revised PSR 20–21.

This would, he contended, change the drug weight attributable to him and decrease his offense

level. Id. But making this objection would threaten to violate the plea agreement because it

would seek to “minimize [Petitioner’s] own actions.” Plea Agreement ¶ 15. Therefore, it was

not deficient performance for Ringel to advise Petitioner to withdraw this objection.

The other objection—that Petitioner was not a career offender because his convictions

were more than ten years old—would not threaten Petitioner’s plea agreement, so if Ringel

advised Petitioner to withdraw the objection on that basis, he was wrong. But there is no

prejudice from this mistake because the objection was frivolous. Under the 2016 Sentencing

Guidelines, which were in effect when Petitioner was sentenced, a defendant was a career

offender if he “ha[d] at least two prior felony convictions of either a crime of violence or a

controlled substance offense.” U.S. Sent’g Guidelines Manual § 4B1.1(a)(3) (U.S. Sent’g

Comm’n 2016) (“2016 Guidelines”). “The provisions of § 4A1.2 . . . are applicable to the

counting of convictions under §4B1.1.” Id. § 4B1.2 cmt. n.3. Under § 4A1.2(e)(1), “a prior

sentence of imprisonment exceeding one year and one month that was imposed within fifteen

years of . . . commencement of the instant offense” or “that resulted in the defendant being

incarcerated during any part of such fifteen-year period” is counted. Petitioner’s two prior

convictions were a conviction for aggravated battery and a conviction for possession of a

controlled substance with intent to deliver. Am. PSR ¶ 24. Defendant was sentenced to seven

years of incarceration in 2007 for the possession with intent to deliver conviction, id. ¶ 32, and to

seventy-two months of incarceration on a probation revocation in 2005 for the aggravated battery

conviction, id. ¶ 29. The instant offense began in early 2017. Id. ¶ 7. As Petitioner was

incarcerated during the fifteen-year period proceeding commencement of the instant offense,

those convictions counted. Arguing that a ten-year period applied would have been frivolous.

3. Objections to the PSR or Sentence

Petitioner also claims that counsel made unspecified mistakes regarding the PSR and

failed to make three or four objections to the PSR. See Pro Se 2255 Mot. 4–5. The Court finds

Petitioner has made only two allegations specific enough to be addressed: that counsel failed to

object to the career offender enhancement and failed to challenge the relevant conduct. See id.

Any other allegations are waived.

As to the relevant conduct objection, the Court has already found that counsel did not err

in advising Petitioner to withdraw his objection because making the objection would have risked

a finding that Petitioner had violated the plea agreement. See supra Section II(b)(ii)(2).

As to the career offender objection, the Court must clarify the nature of the claim. In his

Pro Se 2255 Motion, Petitioner clearly suggests he wanted counsel to object to him being

considered a career offender under the Sentencing Guidelines. Pro Se 2255 Mot. 4–5. In the

Counseled 2255 Motion, Petitioner again suggests counsel was ineffective with respect to the

career offender enhancement. See Counseled 2255 Mot. 4 (using the heading, “Petitioner was

not a career offender” (capitalization altered)). But Petitioner is actually arguing that counsel

was ineffective for failing to object to use of his cocaine convictions as predicates for enhancing

his sentence under 21 U.S.C. § 841(b)(1)(B). See id. An argument that Petitioner was not a

career offender under the Guidelines because his cocaine conviction did not qualify is meritless,

see United States v. Ruth, 966 F.3d 642, 654 (7th Cir. 2020) (holding that a “cocaine conviction

under Illinois law is a controlled substance offense according to the career-offender guideline”),

but the Court will consider the similar counseled argument that Petitioner was not eligible for an

enhanced sentence under § 841.

21 U.S.C. § 841(b) sets the penalties for possession with intent to distribute offenses. At

the time Petitioner was charged and sentenced, the minimum sentence of imprisonment for an

offense involving 500 grams or more of cocaine was generally five years and the maximum

sentence was forty years. 21 U.S.C. § 841(b)(1)(B)(ii) (effective Aug. 3, 2010 to Dec. 20, 2018).

But if the defendant committed the offense “after a prior conviction for a felony drug offense

ha[d] become final” there was a mandatory minimum ten-year sentence and a maximum life

sentence. Id. A “felony drug offense” was defined as “an offense . . . 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) (effective July 22, 2016 to

Oct. 23, 2018).

In Ruth, the Seventh Circuit found that because Illinois defines cocaine more broadly

than federal law, an Illinois conviction for possessing cocaine with intent to deliver does not

qualify as a predicate felony drug offense for purposes of the enhanced statutory range. Ruth,

966 F.3d at 645–50; cf. White v. United States, 8 F.4th 547, 556 (7th Cir. 2021) (“The definition

of cocaine under the Controlled Substances Act does not include ‘positional isomers,’ but the

definition under Illinois law does.”). Petitioner’s 2004 possession and 2007 possession with

intent to deliver convictions were based on his possession of cocaine. Am. PSR ¶¶ 30, 32. The

Government concedes that under Ruth, these convictions would not qualify as felony drug

offenses, see Resp. 43 n.15, and the Court concurs.

Petitioner can establish prejudice from Ringel’s failure to argue that his cocaine

convictions could not be used to subject him to an enhanced sentencing range under 21 U.S.C.

§ 841(b)(1)(B). Offense level under the career offender Guidelines is dictated by the statutory

maximum for the offense. See 2016 Guidelines § 4B1.1(b). Without the enhanced sentencing

range, Petitioner would have been subject to a forty-year statutory maximum. 21 U.S.C.

§ 841(b)(1)(B) (effective Aug. 3, 2010 to Dec. 20, 2018). With a forty-year statutory maximum,

the career offender Guidelines call for an offense level of either 34 or the otherwise applicable

offense level, whichever is higher. See 2016 Guidelines § 4B1.1(b)(2). As Petitioner’s

otherwise applicable offense level was 36, that would apply. See Am. PSR ¶ 23. With a

criminal history category of VI,6 id. ¶ 35, and adjusted offense level of 33 (after a three-level

reduction for acceptance of responsibility), id. ¶¶ 25–26, Petitioner’s Guidelines range would

have been 235 months to 293 months. See 2016 Guidelines Ch. 5, Pt. A, Sentencing Table. As

Petitioner was given a reduction off the low end of his Guidelines range, it is probable that he

would have been sentenced to fewer than 216 months of imprisonment.

The trickier question is whether Petitioner can show that Ringel performed deficiently for

failing to raise this issue at his sentencing in May 2018. The Government argues that Ringel’s

handling of Petitioner’s case did not fall below an objective standard of reasonableness. See

Resp. 43–48. It argues the Court must not view counsel’s conduct with the benefit of hindsight

now that Ruth has been decided and that the Court cannot “second-guess informed strategic

choices.” Id. at 47–48.

6 Petitioner had a criminal history category of VI without application of the career offender Guidelines. See Am.

PSR ¶ 35.

The Court finds that an evidentiary hearing is necessary to give Petitioner the opportunity

to prove that Ringel performed deficiently by failing to raise a Ruth-type argument in May 2018

when Petitioner was sentenced. Generally, “[t]he Sixth Amendment does not require counsel to

forecast changes or advances in the law.” Valenzuela v. United States, 261 F.3d 694, 700 (7th

Cir. 2001) (alteration in original) (quotation marks omitted). But there is an exception “where

the building blocks of an argument exist and sufficiently foreshadow a change in the law such

that competent counsel would at least evaluate, and possibly present, an unprecedented position.”

Neal v. United States, Civil No. 19-cv-1360-JPG & Criminal No. 14-cr-40076-JPG, 2021 WL

3668680, at *10 (S.D. Ill. July 8, 2021) (citing Bridges v. United States, 991 F.3d 793, 798, 804

(7th Cir. 2021)).

In Harris v. United States, 13 F.4th 623, 626–27, 629 (7th Cir. 2021), the Seventh Circuit

considered whether the petitioner’s counsel was ineffective failing to raise a Ruth-type argument

regarding the petitioner’s prior Indiana cocaine convictions, which the parties agreed on § 2255

review were not predicate offenses for an enhanced sentence under § 841. The petitioner was

sentenced in October 2017. Id. at 626. The Seventh Circuit held that “[a]t the time of [his]

sentencing, his counsel should have known about a possible categorical challenge to the

predicate offenses” and that “[b]y 2017, when [the petitioner] was negotiating his guilty plea, the

categorical approach was well-established.” Id. at 629. Indeed, it noted, “one circuit court had

already applied the categorical approach to the federal ‘felony drug offense’ definition,” id.

(citing United States v. Ocampo-Estrada, 873 F.3d 661, 667 (9th Cir. 2017)), and “though no

cases had then adopted the view on isomers that [the Seventh Circuit had] since embraced in

Ruth and [United States v. De La Torre, 940 F.3d 938, 952 (7th Cir. 2019)—in which the

Seventh Circuit held that a particular Indiana drug crime could not serve as a predicate felony

drug offense in part because the Indiana statute included isomers of methamphetamine not

included in the federal definition of methamphetamine—]at least one court had considered the

issue before [the petitioner’s] sentencing hearing.” Id. (citing United States v. Jimenez-Ibarra,

695 F. App’x 767, 770–72 (5th Cir. 2017)).

Ultimately, the Seventh Circuit found that the attorney in Harris did not perform

deficiently—even though it was unaware of whether the attorney knew about a potential

challenge—because viewed from an objective perspective, counsel made a reasonable choice to

pursue a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) for twenty years

of imprisonment. Id. at 630–31. The petitioner had two prior drug convictions, meaning that he

could have been subject to life imprisonment. Id. at 625–26. Counsel could have made the

novel argument that the petitioner’s convictions did not qualify as predicate offenses, but he

would have risked the government withdrawing its offer to rely on only one prior conviction and

agree to a twenty-year sentence. Id. at 630. It was an objectively reasonable choice to pursue

the plea agreement rather than risk his client being sentenced to life imprisonment if the novel

argument were not accepted. Id. at 631.

The Court finds that, unlike in Harris, more factual development is necessary here, so it

orders an evidentiary hearing. See 28 U.S.C. § 2255(b) (“Unless the motion and the files and

records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . .

grant a prompt hearing thereon . . . .”). Ringel should have been aware of a potential categorical

challenge to Petitioner’s predicate offenses in 2018. See Harris, 13 F.4th at 629. Indeed,

Petitioner alleges that he suggested to Ringel that he make this type of argument before his

sentencing. See Pro Se 2255 Mot. 4–5 (alleging that Petitioner asked Ringel to make three or

four objections to the revised PSR and that he recently found research supporting the arguments

he wanted Ringel to make, namely that his state statute of conviction criminalized a broader

category of drugs). If true, then Ringel certainly was on notice that he should explore this

potential argument. Cf. Kimmelman, 477 U.S. at 384 (“[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary.” (quotation marks omitted)); Harris, 13 F.4th at 630 (“[T]his court has stated

repeatedly that comparing statutory definitions is part of competent representation.”). What is

not clear is whether he did explore the claim and whether he decided, as a matter of strategy, to

make other arguments. See Neal, 2021 WL 3668680, at *11 (ordering an evidentiary hearing

regarding appellate counsel’s performance where it “[wa]s not clear . . . whether [she] considered

the argument for [the petitioner’s] case and, if she did, why she chose not to raise it in favor of

the arguments she did raise”). As the Court cannot resolve this claim on the papers, it orders an

evidentiary hearing.7

CONCLUSION

Accordingly, Petitioner Terrance Liggins’s pro se Motion Under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 1, and

counseled Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255, ECF No. 7, are DENIED IN

PART. All of Petitioner’s claims are denied except his claim that his counsel was ineffective for

failing to argue that he did not qualify for an enhanced sentencing range under 21 U.S.C.

§ 841(b)(1)(B) due to prior felony drug convictions. The Court will hold an evidentiary hearing

on this claim. A status conference is set for October 11, 2022 at 9:45 AM by video to discuss

scheduling. Instructions for accessing the Court’s videoconferencing system will be attached in

a separate entry.

7 It is the Court’s understanding that Ringel has passed away. This, however, does not obviate the need for an

evidentiary hearing. Other witnesses could have relevant evidence and testimony.

Entered this 28th day of September, 2022.

s/ Sara Darrow

SARA DARROW

CHIEF UNITED STATES DISTRICT JUDGE