The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALPHONSO PIERRE ALLISON,
Petitioner,
v. Case No. 19-CV-349-SPM
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
MCGLYNN, Judge:
Pending before the Court is a Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence (Doc. 7) filed by Petitioner Alphonso Pierre Allison
(“Allison”). Within the motion, Allison asserted claims of ineffective assistance of trial
counsel; however, Allison was appointed three separate CJA attorneys that
represented him at different times and acquiesced with plea negotiations. For the
reasons set forth below, the motion is DENIED.
FACTUAL & PROCEDURAL BACKGROUND
On September 6, 2016, Allison was indicted by the grand jury on two-counts:
(1) Conspiracy to distribute heroin and crack cocaine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B), 841(b)(1)(C); and (2) Possession of a firearm by a felon in
violation of Title 18 U.S.C. 922(g)(1). United States v. Allison, 16-cr-40037-SMY at
Doc. 1 (S.D. Ill.)(CR. 1).1 With respect to count 1, the amount of a mixture and
1 All documents cited to the criminal case will be designated as “CR.”, while all documents cited to this
2255 matter will designated as “Doc.”.
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substance containing cocaine base “crack cocaine” involved in the overall conspiracy
exceeds 28 grams (Id.). With respect to Count 2, the firearm involved was a High
Standard, model Sentinel R-101, .22 caliber revolver, bearing serial number 806444
(Id. at p. 2). There was also a firearm forfeiture allegation (Id).
On September 15, 2016, the federal public defender was appointed, and this
matter was set for final pretrial conference on 10/26/16 and for jury trial on
11/14/20172 (CR. 10). On September 19, 2016, Judith Kuenneke entered her
appearance to represent Allison on behalf of the office of the federal public defender,
but she was granted leave to withdraw on October 5, 2016 at which time John Stobbs
was appointed as CJA attorney (CR. 16 and 19).
On October 7, 2016, John Stobbs entered his appearance on behalf of Allison
(CR. 20). On October 13, Stobbs filed a motion to continue final pretrial and jury trial,
which was granted without objection to January 5, 2017 and to January 30, 2017,
respectively (CR. 21 and 23). On January 4, 2017, Stobbs filed another motion to
continue, which was granted, rescheduling the final pretrial for March 16, 2017 and
jury trial for April 3, 2017, respectively (CR. 24-25). On March 8, 2017, Stobbs advised
the Court the parties were in the process of finalizing a plea agreement and again
sought a continuance (CR. 26). On March 13, 2017, the court continued the final
pretrial to March 21, 2017, but kept the trial setting of April 3, 2017 (CR. 27).
On March 20, 2017, the final pretrial was converted to a change of plea hearing
(CR. 28). On March 21, 2017, the change of plea hearing was cancelled, and the final
2 Jury trial was initially erroneously scheduled for November 14, 2017; however, the clerical error was
rectified to reflect a correct trial date of November 14, 2016 (CR. 22).
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pretrial was set for April 27, 2017 and jury trial was reset for May 8, 2017 (CR. 30).
On April 3, 2017, Stobbs filed a motion to set a change of plea date and advised that
Allison “desired additional time in which to think about his options” (CR. 31).
Accordingly, the pretrial scheduled for April 27, 2017 was converted to change of plea
hearing and was changed from Benton to East St. Louis (CR. 33). On April 17, 2017,
Allison filed a pro se “motion for reconsideration of plea offer” which was stricken by
the Court and Allison was admonished that he shall not personally file anything with
the Court, unless he asks for counsel to be allowed to withdraw (CR. 35). On April 27,
2017, Stobbs advised the Court that Allison was not prepared to enter into a plea,
and he orally sought leave to withdraw from representation as there was a complete
breakdown in communication (CR. 36). At the hearing, Allison was placed under oath
and advised that he was rejecting the plea offer and indicated that he did not feel that
Stobbs had his best interest at heart (Doc. 25-1, pp. 3-4). On April 28, 2017, Stobbs
filed a written motion to withdraw reiterating the complete breakdown in the
attorney/client relationship (CR. 37). The motion was granted on that same date, and
CJA panel attorney, James Stern, was appointed to represent Allison (CR. 39). This
case was reset for pretrial conference on June 15, 2017 and jury trial on 26, 2017 (Id.).
On May 2, 2017, James Stern entered his appearance in the criminal matter
(CR. 40). On June 12, 2017, Allison sent a pro se letter to the clerk’s office and was
again advised that direct contact with the judge is improper and will not be
considered (CR. 42). On June 13, 2017, the final pretrial conference set for 6/15/17
was converted to a change of plea hearing (CR. 43).
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On June 15, 2017, Stern advised the court that Allison would not be entering
a plea and that he wanted a jury trial (CR. 44). Because of the change, Stern orally
requested to continue the trial setting (Doc. 26-1). The transcript of the proceedings
reflects that the court was reluctant to continue but would look at any motion filed
by Stern (Doc. 26-1, pp. 3). Allison advised that his arraignment was in September
2016 and the case had “grown whiskers” (Id.). It was “not the first time Mr. Allison
has changed his mind at the last minute” and that he had an “absolute constitutional
right” to not enter a plea, but the trial date was not going to be continued again
without a motion and without due consideration of the interests of justice (Id. at 3-6).
On June 16, 2017, Stern filed a motion to continue trial, wherein he advised
the court he was the replacement defense attorney who just took over the case on
April 28, 2017 (CR. 45). Stern claimed that Allison waffled between a plea and a trial
and had a hard time communicating with his family in Chicago from Murphysboro
(Id.). Stern asserted that Allison would be prejudiced without a trial continuance and
advised that the government had no objection (Id.). On June 19, 2017, in furtherance
of the ends of justice, an Order was entered continuing the pretrial to July 12, 2017
and jury trial to July 17, 2017 (CR. 46).
On June 21, 2017, a three-count superseding indictment was returned against
Allison (CR. 48). The Counts were broken down as follows: (1) Conspiracy to
distribute heroin and crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B),
841(b)(1)(C); (2) Knowingly and intentionally distributing a mixture and substance
containing a detectable amount of heroin, a Schedule I Controlled Substance, in
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violation of 21 U.S.C. 841(a)(1), 841(b)(1)(C) and Title 18 U.S.C. § 2; and, (3)
Possession of a firearm by a felon, in violation of Title 18 U.S.C. 922(g)(1) (Id). In
other words, count 1 remained as charged, a new Count 2 was issued and the previous
count 2 became count 3. Additionally, the firearm forfeiture allegation was removed
(Id).
On June 23, 2017, Allison was arraigned on the superseding indictment (CR.
54). In anticipation of trial, the government filed its information to establish prior
conviction and its motion for notice of alibi defense (CR. 58-59). On June 27, 2017, the
government filed its notice of intent to use proffer, acknowledging that the case was
set for jury trial on July 17, 2017 (CR. 61).
On June 28, 2017, Allison entered guilty pleas to all three counts of the
superseding indictment (CR. 62-66). In the transcript of the proceeding, Stern advised
the court that Mr. Allison wished to enter a change of plea to counts 1-3 of the
superseding indictment (Doc. 27-1). Allison was placed under oath and the Court
went through his background before getting to the specifics of this case (Id. at pp. 3-
4). Allison advised that he reviewed the superseding indictment and understood the
charges against him (Id. at 4-5). Allison also indicated that he discussed the
indictment and case with Stern and that he was satisfied with the representation
provided by Stern. (Id.). After the Court went through the potential penalties, Allison
advised that he had no questions about the penalties or charges against him (Id. at
6). Judge Yandle explained Allison’s rights, including that he was innocent until
proven guilty, the he would need to be proven guilty beyond a reasonable doubt, that
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he had a right to a jury trial and a right to confront his accusers, that he had a right
to bring in witnesses to testify in his own behalf, that he had a right against self-
incrimination, and that he had a right to have an attorney with him at every stage of
the proceedings (Id. at 7). Allison indicated he understood those rights (Id.).
While on the record, Allison was then provided with a copy of the plea
agreement, and he confirmed his signature was on the last page and that he had
sufficient opportunity to read and review with Stern before he signed it (Id. at 7-8).
Allison stated that he understood that the Court was not bound by the Plea
Agreement. (Id. at 8). According to the government, the Plea Agreement contained
two different possibilities; first, that Allison is found to be an armed career criminal
and second is that he is not found to be an armed career criminal (Id. at 8). The
government went through the potential sentencing ranges under both scenarios (Id.
at 9-10).
When questioned, Allison indicated he was a “little lost”, so the Court went
through the agreement until he indicated his understanding (Id. at 10-11). Allison
then expressed his intent to plead guilty, and reiterated that he understood the Court
could not withdraw the guilty plea after it was accepted and that the Court was not
bound by the terms of the plea agreement (Id. at 11-12).
Of note, Allison also signed the stipulation of facts prior to the plea hearing
(CR. 65), and confirmed that his signature was on the last page of the document and
that he had discussed the stipulation with Stern before signing it (Id. at 14-15). In
the stipulation, Allison affirmed that he was involved with others in the distribution
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of heroin and crack cocaine, including “John John”, “Up”, “Sheena Carr”, “Ms. Cathy”,
and “Skittles” (Doc. 65). Allison had been receiving dealer amounts of heroin, crack
cocaine and cannabis from Chicago sources, then he and others distributed the drugs
that were oftentimes obtained or provided on “fronts” (Id.). Allison sold heroin to a
confidential source on March 31, 2016 (Id.). Agents executed a search warrant at
Allison’s residence where they located a revolver, U.S. currency, drug packaging
materials, multiple scales and dealer amounts of heroin, crack cocaine and cannabis
(Id. at p. 2). During a second search of Allison’s residence, officers located additional
U.S. currency, heroin and crack cocaine (Id.). When interviewed, Allison admitted to
being involved with others in the distribution of heroin, crack cocaine and cannabis
(Id.). Allison further admitted to receiving the revolver in return for $50.00 worth of
crack cocaine, even though he had previously been convicted of numerous felony
offenses including domestic battery and multiple drug offenses (Id.). Finally, Allison
agreed that his conduct included at least 250 grams of heroin, 158 grams of crack
cocaine and 12 pounds of cannabis (Id.).
On the record, the government recited the factual basis for the charges, as well
as the stipulation as to the weight of substances involved (Id. at 12-14). Allison also
agreed with the factual basis provided by the government and to the evidence they
would present at trial (Id. at 15). Finally, Allison answered “Guilty” three times when
asked how he plead to the charge in Count 1, Count 2 and Count 3 of the superseding
indictment (Id.).
The presentence investigative report (“PSR”) was issued on August 29, 2017
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and reflected Allison’s prior criminal history (CR. 67). On October 3, 2017, this case
was called for sentencing, and both parties advised there were no objections to the
PSR, nor any requests for corrections, alterations or additions (CR. 28-1). Allison
advised that he received a copy of the PSR and went over it with Stern, but claimed
there should be an objection (Id. at pp. 3-4). Stern attempted to clarify that Allison
did not understand the gun enhancement and why he could not file an objection even
though Allison did not use the gun (Id. at p. 5). Allison agreed that he could not object
because the enhancement does not require use of the gun and that the PSR governed
the Court’s guideline calculations, which ranged between 188 and 235 months (Id. at
p. 6-9). Both the government and Stern agreed to the low end and raised mitigating
factors (Id. at pp. 11-18). Nevertheless, at the time of allocution, Allison claimed he
“wanted to fight this case real bad” and “was led that if I don’t plea, I’m going to spend
the rest of my life in jail.” (Id. at pp. 18-19). Allison then claimed “I have never been
threatened so many times in my life” (Id. at p. 20). Allison claimed each appointed
federal attorney was “giving no sign of a fight” and “This was not his wish or desire
to take this plea” (Id. at p. 20). Allison also pointed a finger at the federal prosecutor
for not dropping the gun charge, the Marshall for agreeing with Stobbs and Stern and
Sheriff Burns who “threatened me right in front of my lawyer here that if I didn’t plea
he was going to testify that I did do it” (Id. at p. 20-21). Allison claimed he was “scared
to death” and did not know what to do and only pleaded because he was “scared they
will lose me in the system if I didn’t” (Id. at 21). Because of Allison’s demeanor and
inconsistency in statements, the government requested a continuance of review the
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transcripts of prior proceedings before the sentencing was completed (Id. at pp. 27-
28). They also had some concerns about the acceptance of responsibility condition
(Id.). The sentencing was continued to December 12, 2017 (Id. at p. 31).
On December 6, 2017, the sentencing was reset to December 18, 2017 due to a
court conflict (CR. 73). On December 18, 2017, this matter was reset for a status
conference on February 6, 2017 because Allison orally moved to terminate Stern and
have substitute counsel appointed (CR. 75). At that hearing, Allison stated, “he was
ineffective for me” and “I had wrote him three times … he made me feel that he had
no intention of fighting” (29-1 at p. 3). On December 19, 2018, Stern was terminated
and CJA Panel Attorney Preston Humphrey, Jr. was appointed (CR. 76).
On January 3, 2018, Preston Humphrey, Jr. entered his appearance (CR. 77).
On February 6, 2018, the status conference was reset for February 7, 2018 (CR. 80).
At that time, the sentencing was continued to April 10, 2018 and the parties were
advised that there would be no further continuances, absent extraordinary
circumstances (CR. 81). The transcript of the proceeding reflects that attorney
Humphrey requested additional time to meet with Allison and go over the plea
agreement (Doc. 30-1). Humphrey also advised the court that he advised Allison that
he could not withdraw his guilty plea and needed to move forward with the sentencing
(Id. at 4). The Court indicated its belief that Allison was playing a game, but that he
was “about out of lifelines for further delaying the ultimate” (Id. at p. 5).
On April 10, 2018, a second sentencing hearing was held (CR. 82). At the hearing,
the Court again reviewed the PSR along with the government’s newly raised objection
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to acceptance of responsibility credit, probation’s addendum and psychiatric report from
Wexford Health for the evaluation that occurred on February 15, 2018 (Doc. 31-1). The
Court emphasized that at both the change of plea hearing and sentencing, she
questioned and explored any possibility or issue with Allison’s competency (Id. at pp. 3-
4). Neither Allison nor his counsel indicated a competency issue (Id. at p. 4). Since the
date of plea, Allison has been diagnosed with schizophrenia and has had a change in
medication; however, there is “no issue of competency” (Id.). Attorney Humphrey
reiterated that he “did not have any concerns about his [Allison’s] competency” and he
has believed from moment one that “Mr. Allison was indeed competent” (Id. at p. 6).
Attorney Humphrey also advised that Allison had some regrets about the previous
sentencing and would take back what he said during his previous allocution (Id.).
Allison informed the Court that he was told to say what he did by his mother and that
many people gave him advice and he “wasn’t thinking clearly” because of nerves (Id. at
p. 9). Allison stressed that he was “so nervous and so scared”, but that “I did what I did
and I regret it” (Id.). Allison admitted to selling heroin and said he let drugs control
him, and that he was not in control (Id. at pp. 10-11). Allison also advised his comments
about the prosecutor and Marshall were not true (Id. at p. 11). The prosecutor accepted
Allison’s apology about his prior conduct and withdrew the objection regarding
acceptance of responsibility (Id. at p. 12). The Court then went thru the factors and
ranges for the sentencing as well as the 3-level total reduction for Allison’s acceptance
of responsibility (Id. at p. 14). The government again recommended a low-end sentence
of 188 months (Id. at p. 17). Following a review of the applicable §3553 factors, the
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Court sentenced Allison to 188 months on the superseding indictment, with all counts
to run concurrently and 8 years of supervised release, along with a $300 fine and $300
special assessment (Id. at p. 23).
On April 12, 2018, written judgment was entered (CR 86). On April 24, 2018,
Allison filed a 2-page handwritten motion of ineffective counsel directed against Stern
(CR 88)3. No affidavits of memorandum were filed with the motion.
On April 15, 2019, Allison filed the § 2255 form, which was indicated as a
supplement to the prior handwritten filing (Doc. 5). On October 21, 2019, Allison filed
an amended petition that stated the following ground for relief - trial counsel
ineffective, with a reference to attached memorandum of law which set forth two
theories for an ineffective assistance of counsel claim, as well as making arguments
under both Mathis and Rehaif (Doc. 7). In an effort to thoroughly evaluate this
petition, the Court will address all arguments that appear to have been raised, in
whatever format.
LEGAL STANDARD
Relief under 28 U.S.C. § 2255 is limited. Unlike a direct appeal in which a
defendant may complain of nearly any error, relief under Section 2255 is reserved for
extraordinary situations. Prewitt v. United States, 83 F.3d 812 (7th Cir. 1996). A
petitioner may avail himself of relief under § 2255 only if he can show that there “are
flaws in the conviction or sentence which are jurisdictional in nature, constitutional
3 This Motion was initially filed in the criminal case. On March 25, 2019, the Court ordered it stricken and
directed the clerk’s office to file as a §2255 petition retroactively (now filed as Doc. 1 in 19-cv-349) and send
petitioner a blank §2255 form (CR 90).
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in magnitude, or result in a complete miscarriage of justice.” Blake v. United States,
723 F.3d 870, 878 (7th Cir. 2013); Accord Harris v. United States, 366 F.3d 593, 594
(7th Cir. 2004).
If the court determines that any of these grounds exists, it “shall vacate and
set the judgment aside and shall discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255 . In
making that determination, the court must review the evidence and draw all
reasonable inferences from it in a light most favorable to the government. United
States v. Galati, 230 F.3d 254, 258 (7th Cir.2000); Carnine v. United States, 974 F.2d
924, 928 (7th Cir.1992).
Section 2255 cannot be used as a substitute for a direct appeal or to re-litigate
issues decided on direct appeal. Coleman v. United States, 318 F.3d 754, 760 (7th Cir.
2003), cert. denied, 540 U.S. 926 (2003); Sandoval v. United States, 574 F.3d 847, 850
(7th Cir. 2009); White v. United States, 371 F.3d 900, 902 (7th Cir. 2004). Accordingly,
a petitioner bringing a § 2255 claim is barred from raising: (1) issues raised on direct
appeal, absent some showing of new evidence or changed circumstance; (2) non-
constitutional 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 “procedural default” and actual prejudice from the failure to appeal.
Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). Despite that general
requirement, defendants are not required to raise ineffective assistance of counsel
claims on direct appeal to preserve them for collateral appeal purposes. Massaro v.
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United States, 538 U.S. 500, 504 (2003).
ANALYSIS
I. Ineffective Assistance of Trial Counsel
Allison raises two separate claims of ineffective assistance of counsel against
Stern (Doc. 7). First, Allison asserts that Stern induced him to accept plea by threats
and misrepresentations and by failing to investigate possible defenses. Second, Allison
asserts that Stern failed to argue a buyer/seller relationship. While the legal standard
is the same, the discussion of each argument will be distinct.
A. Applicable Law
Claims of ineffective assistance of counsel “may be brought in a collateral
proceeding under § 2255, whether or not the petitioner could have raised the claim on
direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003). Under the law of
this Circuit, because counsel is presumed effective, Allison “bears a heavy burden in
making out a winning claim based on ineffective assistance of counsel.” United States
v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995). In order to prevail on a claim for ineffective
assistance of counsel upon collateral review, a petitioner must meet the two-pronged
Strickland test and establish that “(1) his counsel’s performance fell below an objective
standard of reasonableness; and, (2) that his deficient performance so prejudiced his
defense that he was deprived of a fair trial.” Fountain v. United States, 211 F.3d 429,
433 (7th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 688-94 (1984)).
Stated another way, under the Strickland test the defendant must show that his
counsel’s actions were not supported by a reasonable strategy, and that the error was
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prejudicial. Massaro, 538 U.S. at 501.
The first prong of the Strickland test, classified as the “performance prong,” calls
for a defendant to direct the Court to specific acts or omissions forming the basis of his
claim. Trevino, 60 F.3d at 338. The Court then must determine whether, in light of all
the circumstances, those acts or omissions fell “outside the wide range of professionally
competent assistance.” Id. While making this assessment, the Court must be mindful
of the strong presumption that counsel’s performance was reasonable. Accord Fountain
v. United States, 211 F.3d 429, 434 (7th Cir. 2000).
In evaluating an ineffective assistance claim, a court does not always need to
analyze both prongs because failure to satisfy either prong is fatal to the claim. United
States v. Ebbole, 8 F.3d 530, 533 (7th Cir. 1993) citing Strickland, 466 U.S. at 697. In
other words, if the defendant fails to satisfy the first prong, there is no need to address
the second prong.
If, however, the defendant satisfies the performance prong, he must then meet
the “prejudice prong” of Strickland. Ebbole, 8 F.3d at 533. This requires the defendant
to demonstrate “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Emezuo v. United States, 357
F.3d 703, 707-08 (7th Cir. 2004) citing Strickland, 466 U.S. 52 (1985).
B. Discussion
1. Plea
Allison first contends that Stern was ineffective for inducing him to accept the
plea agreement by threats and misrepresentations and for failing to investigate
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possible defenses (Doc. 7). However, Allison does not provide any evidence of any
threats or misrepresentations nor does he provide any information as to possible
defenses that Stern failed to investigate. Furthermore, the change of plea hearing
itself speaks to the contrary (Doc. 27-1), as does the sentencing transcript (Doc. 31-1).
Furthermore, the government has provided an affidavit of James Stern regarding his
representation of Allison (Doc. 32-3).
For a guilty plea to be valid, it “not only must be voluntary but must be
knowing and intelligent”. Brady v. United States, 397 U.S. 742, 748 (1970). For a plea
to be intelligent, a defendant must first receive “real notice of the true nature of the
charge against him, the first and most universally recognized requirement of due
process.” Bousley v. United States, 523 U.S. 614, 618 (1998). A defendant’s claims of
involuntariness or confusion may be insufficient to allow withdrawal of a plea “in the
context of a record containing substantial indications of voluntariness and lack of
confusion.” United States v. Patterson, 576 F.3d 431, 437 (7th Cir. 2009) (quoting
United States v. Trussel, 961 F.2d 685, 689 (7th Cir. 1992)).
To succeed on a claim that counsel was insufficient during the plea process,
petitioner must show that “counsel’s representation fell below an objective standard
of reasonableness when measured against prevailing professional norms.” Gaylord v.
United States, 829 F.3d 500, 506 (7th Cir. 2016). Competent counsel will “attempt to
learn all of the facts of the case, make an estimate of a likely sentence, and
communicate the results of that analysis before allowing his client to plead guilty.”
Id. The petitioner must also show that absent counsel’s deficient performance, there
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is a reasonable likelihood that he would not have pleaded guilty and would have
instead gone to trial. Id.
There is no uniform approach to ensuring that a defendant understands the
charges against him and potential sentence. See United States v. LeDonne, 21 F.3d
1418, 1423 (7th Cir. 1994). As a result, a court must examine the “totality of the
circumstances” to determine whether a defendant’s plea was intelligent. See United
States v. Bradley, 381 F.3d 641, 645 (7th Cir. 2004). Courts may consider factors
including: (1) the complexity of the charge; (2) the defendant’s intelligence, age, and
education; (3) whether the defendant was represented by counsel; (4) the district
court’s inquiry during the change of plea hearing and the defendant’s responses; and
(5) the evidence proffered by the government for its factual basis. See LeDonne, 21
F.3d at 1423.
At the change of plea hearing held on June 28, 2017, Judge Yandle placed the
defendant under oath and observed him while going through a series of background
questions (Doc. 27-1, pp. 3-4). The Court then explained the charges to Allison as well
as the possible penalties (Id. at 5-6). At this hearing, Allison was represented by Stern
and was asked, “Sir, are you fully satisfied with the counsel representation and advice
Mr. Stern has provided you in this case?” To which he replied, “Yes”. (Id. at 5). Allison
also denied that any threats or promises were made to him in an effort to induce him
to plead guilty and reiterated his intention to plead guilty before doing so to all three
counts of the superseding indictment. (Id. at 11-12). After observing Allison and
listening to his responses, the Court found that he knowingly, voluntarily and
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competently pled guilty to the superseding indictment and adjudged him guilty of
violating the offenses (Id. at 16).
The district judge is in the best position to assess the credibility of the
defendant because the judge is intimately familiar with the record and has the
opportunity to observe the defendant's demeanor at the hearing. United States v.
Messino, 55 F.3d 1241 (7th Cir. 1995). There was no indicia of threats or
misrepresentations at the plea hearing, and the Court found that Allison’s plea was
knowingly, voluntarily and competently made. That determination was made while
Allison was in front of the Court. Furthermore, Stern’s affidavit belies Allison’s
assertions (Doc. 32-3).
There is no evidence supporting the contentions made by Allison regarding
threats and/or misrepresentations. Allison has not shown that Stern’s conduct was
unreasonable nor has he shown that Stern’s conduct deprived him of a fair trial.
Indeed, even though Stern’s affidavit indicates that he did encourage Allison to plead
guilty, he would have vigorously represented him at trial if defendant advised me that
he did not want to enter a guilty plea. The choice was Allisons, and the record is
replete with evidence to support that his choice, to enter the guilty plea, was made
knowingly, voluntarily and competently.
2. Buyer/Seller Relationship
Allison’s second claim for ineffective assistance of counsel was that Stern failed
to argue a buyer/seller relationship (Doc. 7). This claim fails as well under the
Strickland test.
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Allison argues that Stern was ineffective for not raising the defense of
buyer/seller relationship and claims the evidence only supported that he participated
in a buyer-seller relationship, not a conspiracy (Doc. 7, p. 19). While the two charges
share similar elements, a conspiracy also requires a common criminal goal between
two or more people and requires the government to “offer evidence establishing an
agreement to distribute drugs that is distinct from evidence of the agreement to
complete the underlying drug deals. United States v. Johnson, 592 F.3d 749, 755 (7th
Cir. 2010).
Conspiracy has two elements: (1) an agreement to commit an unlawful act; and
(2) the defendant must have knowingly and intentionally joined that agreement.
United States v. Johnson, 437 F.3d 665, 675 (7th Cir.2006). Proof of conspiracy may
come from direct evidence or circumstantial evidence, as well as “the reasonable
inferences ... concerning the parties' relationships, their overt acts, and their overall
conduct,” United States v. Miller, 405 F.3d 551, 555 (7th Cir.2005) (quoting United
States v. Navarrete, 125 F.3d 559, 562 (7th Cir.1997)). Circumstantial evidence that
indicates conspiracy, and not just a buyer-seller relationship, includes, for example:
large-quantity drug sales; repeated or standardized transactions; a lengthy
relationship between the parties; sales on credit (i.e., fronting); warnings of threats by
competitors or law enforcement; and sharing tools and supplies. United States v.
Moreno, 922 F.3d 787, 794 (7th Cir. 2019).
Stern has more than thirty (30) years of experience as both a prosecutor and
criminal defense attorney (Doc. 32-3). He reviewed the discovery and physical evidence
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in this case and was aware of: at least seven (7) witnesses who purchased drugs from
Allison; the recovery of 741.32 kilograms of MEU drugs; a controlled drug buy with
marked funds and electronic surveillance; at least three (3) detailed in-depth
confessions from Allison; as well as a proffer interview from Allison. (Id.) It was Mr.
Stern’s professional opinion that the government had enough evidence to support a
conviction on conspiracy such that it was in Allison’s best interest to enter into a guilty
plea. (Id.)
The choice not to investigate a particular defense does not constitute deficient
performance “if a lawyer has made a reasonable decision that makes particular
investigations unnecessary.” Adams v. Bertrand, 453 F.3d 428, 436 (7th Cir.2006).
There are countless ways to provide effective assistance in any given case; even the
best criminal defense attorneys would not defend a particular client in the same way.
Strickland, 466 U.S. 668.
The evidence clearly provided ample grounds to support a conspiracy. First,
Allison affirmatively accepted the factual basis provided at the plea hearing (Doc. 27-
1, p. 12). Allison was involved with numerous others in the distribution of heroin and
crack cocaine (Id., p. 13). On multiple occasions, Allison obtained dealer amounts of
heroin, cocaine or crack cocaine and marijuana (Id.). Allison sometimes had others
distribute the drugs (Id.) Much of the time, the heroin, crack cocaine and other drugs
would be obtained or provided on fronts (Id.). A large amount of heroin and cocaine not
yet packaged for resale, along with a firearm, were found during a search of one of his
residences (Id.). A second search revealed U.S. currency, drug-packaging materials,
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scales, along with more heroin and crack cocaine (Id.). Allison also admitted in his
interview to being involved with others in the distribution of heroin, crack cocaine and
cannabis and to receiving the firearm from another in return for crack cocaine. (Id., p.
14). Second, the written stipulation of facts, which Allison indicated he signed after
reviewing with Stern, was incorporated into the plea hearing and “sets forth more of
the specifics” (Id. at 15; CR. 65). Based upon the foregoing, any argument for buyer-
seller relationship versus a conspiracy would have been futile. As such, Allison has not
shown that Stern’s performance was unreasonable.
II. Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)
Allison argues that his prior Illinois drug offenses do not qualify as predicate
offenses for the ACCA and cites to Mathis v. United States, 136 S.Ct. 2243 (2016) for
said argument. Allison did not raise this argument on direct appeal, so the government
claims it is procedurally defaulted.
A. Applicable Law
The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), imposes a
mandatory minimum sentence of 15 years on a person who violates 18 U.S.C. § 922(g)
and who has three prior convictions for a violent felony or a serious drug offense. In
determining whether a prior crime counts as a predicate for purposes of the ACCA, a
court uses a “categorical approach,” looking not to the facts of the prior crime but to the
statutory elements of the prior conviction. Mathis v. United States, 136 S.Ct. 2243
(2016). A prior crime qualifies as an ACCA predicate “if its elements are the same as,
or narrower than, those of the generic offense.” Mathis, 136 S. Ct. at 2247.
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A violent felony is a crime punishable by more than one year of imprisonment
that “has as an element the use, attempted use, or threatened use of physical force
against the person of another” or “is burglary, arson, or extortion, [or] involves use of
explosives.” § 924(e)(2)(B).4 A serious drug offense is defined as follows:
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.),
the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.),
or chapter 705 of title 46, for which a maximum term of imprisonment of
ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled
substance (as defined in section 102 of the Controlled Substances Act (21
U.S.C. 802)), for which a maximum term of imprisonment of ten years or
more is prescribed by law.
§ 924(e)(2)(A).
Because petitioner’s prior drug convictions were for violation of state law,
subsection (ii) of the definition of a serious drug offense applies here.
B. Discussion
In this case, the PSR used the following three offenses to determine that Allison
was classified as an Armed Career Criminal: (1) Manufacture/delivery of controlled
substance in Cook County, Illinois case 90C66074201; (2) Domestic battery in McLean
County, Illinois case 97-CF-177; and (3) Drug conspiracy/unlawful delivery of
controlled substance in McLean County, Illinois case 97-CF-38. Allison does not appear
to dispute the domestic battery offense as a predicate, so this Court will focus on the
two drug convictions from 1990 and 1997.
4 The “residual clause” of the ACCA was declared unconstitutional in Johnson v. US, 135 S.Ct. 2551
(2015). Johnson did not affect the validity of the two clauses quoted above.
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In 1990 and 1997, Allison was charged (and convicted) of violations of 720 ILCS
570/401 and its predecessor, Ill.Rev.Stat., ch 56 ½, Section 1401, which provided, inter
alia, that “it is unlawful for any person to knowingly manufacture or deliver, or possess
with intent to manufacture or deliver, a controlled substance.” The Cook County case,
90C66074201, involved a class X felony offense, which resulted in a 4-year sentence to
the Illinois Department of Corrections. The McLean County case, 97CF38, involved
pleas to class 1 and class 2 felony offenses, which resulted in a 6-year sentence to the
Illinois Department of Corrections.
Allison asserts that the Illinois statute on drug offenses is overly broad;
however, this Court is bound to follow binding precedent. The Seventh Circuit has
specifically rejected Allison’s argument and held that career offender enhancement
under the United States Sentencing Guidelines, premised on an Illinois controlled
substance conviction under 720 ILCS § 570/401, was proper. United States v. Redden,
875 F.3d 374 (7th Cir. 2017). See also United States v. Neville, 784 Fed.Appx. 950 (7th
Cir. 2019) and Wiggins v. Stancil, 2020 WL 1663156. The Supreme Court has also
recognized that a state offense ranks as a “serious drug offense” if it involves
manufacturing, distributing, or possessing with intent to manufacture or distribute, a
controlled substance. Shular v. United States, 140 S.Ct. 7979 (2020).
Based on the foregoing, Allison was appropriately categorized an armed career
offender, and as such, was properly sentenced under the ACCA. Additionally, this
argument is procedurally defaulted because it was not raised previously. Hale v. United
States, 710 F.3d 711, 713–14 (7th Cir. 2013).
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III. Rehaif v. United States, 139 S.Ct. 2191 (2019)
In count 3 of the superseding indictment to which Allison pled guilty, he was
charged with a violation of possession of firearm by a felon in violation of 18 U.S.C. §
922(g)(1). Allison asks the Court to hold this argument in abeyance due to the recent
Supreme Court decision of Rehaif v. United States, 139 S.Ct. 2191. However, because
Allison did not raise this argument on direct appeal, the government claims it is
procedurally defaulted, like the Mathis claim.
Allison did not raise a Rehaif argument in the district court during his criminal
proceeding or direct appellate review, which is in direct contravention of a Section
2255 claim. To overcome his procedural default, Allison must “show cause for the
default and actual prejudice, or that failure to consider the defaulted claim will result
in a fundamental miscarriage of justice.” Cross v. United States, 892 F.3d 288, 294-
95 (7th Cir. 2018) (internal quotation marks and citations omitted).
A. Applicable Law
In Rehaif v. United States, 139 S. Ct. 2191 (2019), the Supreme Court reviewed
a case in which a district court judge instructed a jury that the “United States is not
required to prove” that a defendant “knew that he was illegally or unlawfully in the
United States” for purposes of convicting the defendant for possessing a firearm in
violation of 18 U. S.C. §922(g). The Supreme Court reversed, holding that for offenses
under that statute, the Government must prove both that the defendant possessed a
firearm and that they knew that they were in the category of persons barred from
possessing a firearm.
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Prior to Rehaif, courts of appeal, including the Seventh Circuit, had held there
were only three elements to a violation of 18 U.S.C. § 922(g): (1) that the defendant
knowingly possessed a firearm, (2) that he was a convicted felon at the time he
possessed the firearm, and (3) that the firearm traveled in interstate commerce.
However, in Rehaif, the U.S. Supreme Court held that there is a fourth element that
must also be proven – (4) that the defendant knew at the time he possessed the
firearm that he had been convicted of a crime punishable by imprisonment for more
than one year. 139 S. Ct. 2191. The Seventh Circuit has held that in cases where a
defendant seeks collateral review of a sentence based in Rehaif, the defendant “bears
the burden of showing that his erroneous understanding of the elements of § 922(g)
affected his substantial rights—his decision to plead guilty—before he may do so.”
United States v. Williams, 946 F.3d 968, 970 (2020).
B. Discussion
Any argument that Allison did not know he had been convicted of a crime
punishable by imprisonment for more than one year at the time he possessed the
firearm would not be plausible. See United States v. Williams, 946 F.3d 968 (7th Cir.
2020). At the time of his plea, Allison had previously been sentenced to prison for over
a year on at least four separate occasions (1990 – 4 years, 1997 – 3 years, 1997 – 6
years, 2002 – 3 years, 2010 – 3 years). (CR. 67/sealed PSR). Additionally, he signed
the stipulation of facts that stated the following:
“At the time that defendant possessed the firearm, he had previously
been convicted of numerous felony offenses including felony domestic
battery and multiple felony drug offenses.” (CR. 65).
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Therefore, there is no reasonable probability that Allison would have declined to plead
guilty had he known that a § 922(g) conviction required that he know he had been
convicted of such a crime.
Absent a showing of both cause and prejudice, procedural default will only be
excused if the Allison can demonstrate that he is ‘actually innocent’ of the crimes of
which he was convicted. McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016).
Allison cannot overcome his procedural default based on actual innocence.
To pass through the actual innocence gateway, Allison must show that “‘it is
more likely than not that no reasonable juror would have found him guilty beyond a
reasonable doubt.’” See House v. Bell, 547 U.S. 518, 536-37 (2006); see also Bousley v.
United States, 523 U.S. 614, 623 (1998) (citations & quotations omitted). “Actual
innocence” means factual innocence, not mere legal insufficiency of proof of guilt. Id.
Allison cannot establish his actual innocence under Rehaif for at least two
reasons: (1) he signed a plea agreement and stipulation of fact stating that he had
previously been convicted of a felony punishable by imprisonment for a term
exceeding one year; and, (2) his presentence report indicates that he had previously
been sentenced to prison for a term exceeding one year on multiple occasions. See
ECF Nos. 26, 27, 30; see also Boose v. Marske, 2019 WL 4393077, *3 (W.D. Wis. 2019).
Far from establishing “actual innocence,” both these documents illustrate the
fact that Allison had previously been convicted of a felony offense and that there was
a factual basis for his knowledge that he is felon. See Brewster v. United States, 2019
WL 5076404 (W.D.N.C. Oct. 9, 2019)(“courts have held that Rehaif relief does not
apply in cases where a defendant entered a guilty plea.”).
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Moreover, the Seventh Circuit has held that:
. . . the Supreme Court decided Rehaif and held that an
element of a conviction under 18 U.S.C. §§ 922(g),
924(a)(2), is the defendant’s knowledge of his status (at
least for felons and aliens illegally in the United States).
139 S. Ct. at 2200. For Williams, that means the
government *971 would have needed to prove—or he to
admit—that he knew he had “been convicted in any court
of[ ] a crime punishable by imprisonment for a term
exceeding one year.” 18 U.S.C. § 922(g)(1). United States v.
Williams, 946 F.3d 968, 970–71 (7th Cir. 2020).
The Seventh Circuit also held that:
Although the record does not establish definitively whether
Dowthard knew of his felon status at the time he possessed
the firearm, he has offered us no reason to believe he might
not have. He previously was sentenced to and served more
than a year in prison on his drug conviction. This time in
prison would severely hamper an assertion that he was
ignorant of the fact that this crime was punishable by more
than a year of imprisonment. See United States v.
Dowthard, 948 F.3d 814, 818 (7th Cir. 2020).
Similarly, Allison has provided no basis to conclude that a reasonable juror could
have inferred that he was somehow unaware that he had been convicted of one or more
felonies when he possessed the firearm. Any failure by the government to “prove” this
element of the offense was harmless and did not amount to a miscarriage of justice.
Because Allison cannot establish “actual innocence”, there is no viable claim under
Rehaif.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the Court
must issue or deny a certificate of appealability when entering a final order adverse to
a petitioner.
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A petitioner’s right to appeal a district court’s denial of a Section 2255 petition is
not absolute; it depends on whether the district court grants a certificate of
appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). A certificate of
appealability is warranted only where (1) a petitioner shows that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and (2) jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Allison has not made a substantial showing that he was denied a constitutional
right. Reasonable jurists could not debate whether Allison’s counsel was ineffective,
whether the ACCA was correctly applied, or whether a claim survives under Rehaif.
The Court therefore declines to issue a certificate of appealability.
CONCLUSION
Alphonso Pierre Allison’s Amended Petition to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (Doc. 7) is DISMISSED with prejudice. Given
the record of the underlying criminal action where Allison was provided with three
separate CJA attorneys, as well as numerous continuances of the trial setting and the
change of plea hearings, it is obvious that the Court was invested in guaranteeing that
Allison’s rights were more than protected. It also appears as if this action was frivolous
and without merit as the evidence was obvious and Allison’s argument is wholly without
merit. Spiegel v. Continental Illinois Nat’l Bank, 790 F.2d 638 (7t Cir. 1986). The Court
DECLINES to issue a certificate of appealability.
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IT IS SO ORDERED.
DATED: March 9, 2021
/s/ Stephen P. McGlynn_
STEPHEN P. McGLYNN
U.S. District Judge
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