Faulkner v. United States

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

EMILY A. FAULKNER,

Petitioner,

v. Civil No. 21-cv-490-JPG

UNITED STATES OF AMERICA, Criminal No 19-cr-40030-JPG

Respondent.

MEMORANDUM AND ORDER

This matter comes before the Court on petitioner Emily A. Faulkner’s motion to vacate,

set aside or correct her sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). In December 2019, the

petitioner pled guilty to one count of conspiracy to distribute methamphetamine in violation of

21 U.S.C. §§ 841(a) & (b)(1)(C), 846. In July 2020, the Court sentenced her to serve 180 month

in prison. She did not appeal her conviction.

I. § 2255 Motion

In her timely § 2255 motion, the petitioner raises the following claims of constitutionally

ineffective assistance of counsel Bobby E. Bailey in violation of her Sixth Amendment rights:

Ground 1a: Counsel failed to show up in court for all of the hearings;

Ground 1b: Counsel failed to explain the criminal process in terms she could

understand;

Ground 2: Counsel told her that if she made post-arrest statements she would get a

one-third reduction in her sentence and then failed to demand the

Government specifically perform this promise; and

Ground 3: Counsel threatened her that if she filled this § 2255 motion, she would

serve a longer sentence and not get a sentence reduction.

Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United

States District Courts, the Court has determined that it is plain from the motion and the record of

the prior proceedings that the petitioner is not entitled to relief.

II. Analysis

The Court must grant a § 2255 motion when a petitioner’s “sentence was imposed in

violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). However,

“[r]elief under § 2255 is available ‘only in extraordinary situations, such as an error of

constitutional or jurisdictional magnitude or where a fundamental defect has occurred which

results in a complete miscarriage of justice.’” United States v. Coleman, 763 F.3d 706, 708 (7th

Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). It is proper to

deny a § 2255 motion without an evidentiary hearing if “the motion and the files and records of

the case conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C.

§ 2255(b); see Shipman v. United States, 925 F.3d 938, 943 (7th Cir. 2019).

Faulkner asserts violations of her Sixth Amendment rights. The Sixth Amendment to

the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . .

to have the Assistance of Counsel for [her] defence.” U.S. Const. amend. VI. This right to

assistance of counsel encompasses the right to effective assistance of counsel. McMann v.

Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir.

2009). A party claiming ineffective assistance of counsel bears the burden of showing (1) that

her trial counsel’s performance fell below objective standards for reasonably effective

representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington,

466 U.S. 668, 688-94 (1984); Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014); United

States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011); Wyatt v. United States, 574 F.3d 455, 457 (7th

Cir. 2009).

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In a case where a petitioner pled guilty as a result of alleged ineffective assistance of

counsel, to satisfy the first prong of the Strickland test, the petitioner must show that her

counsel’s advice leading to the plea was outside the range of professionally competent

assistance. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (citing McMann, 397 U.S. at 771;

Tollett v. Henderson, 411 U.S. 258, 267 (1973)). To satisfy the second Strickland prong, she

must show that there is a reasonable probability that, but for her counsel’s deficient performance,

she would not have entered a guilty plea and instead would have gone to trial. Lee v. United

States, 137 S. Ct. 1958, 1965 (2017); Hill, 474 U.S. at 59; United States v. Parker, 609 F.3d 891,

894 (7th Cir. 2010); Wyatt, 574 F.3d at 458; Richardson v. United States, 379 F.3d 485, 487 (7th

Cir. 2004). Counsel’s deficient performance must have been a decisive factor in the defendant’s

decision to enter a guilty plea. Wyatt, 574 F.3d at 458; see Julian v. Bartley, 495 F.3d 487, 498

(7th Cir. 2007). To make such a showing, the petitioner must present objective evidence that he

would not have entered a guilty plea; his own self-serving testimony that he would have insisted

on going to trial is not enough. Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011);

McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996) (citing Toro v. Fairman, 940 F.2d

1065, 1068 (7th Cir. 1991)); see Wyatt, 574 F.3d at 458 (stating “a defendant’s mere allegation

that he would have chosen a path other than the conditional plea is insufficient by itself to

establish prejudice.”). “Courts should not upset a plea solely because of post hoc assertions

from a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges

should instead look to contemporaneous evidence to substantiate a defendant's expressed

preferences.” Lee, 137 S. Ct. at 1967.

In some instances counsel’s deficient performance is so stark that prejudice can be

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presumed such as where counsel abandoned a defendant or utterly failed to represent her. This

presumption can occur:

in the face of a “complete denial of counsel” or denial at a “critical stage” of the

litigation. The presumption would also be triggered if counsel “entirely fails to

subject the prosecution’s case to meaningful adversarial testing,” or if, due to the

timing of the trial or other factors, “the likelihood that any lawyer, even a fully

competent one, could provide effective assistance is [] small.”

Smith v. Brown, 764 F.3d 790, 796 (7th Cir. 2014) (quoting United States v. Cronic, 466 U.S.

648, 659-60 (1984); internal citations omitted). A critical stage in a criminal case is “every

stage of the criminal process between arraignment and appeal that either addresses a substantive

issue or risks loss of a procedural right.” See Schmidt v. Foster, 911 F.3d 469, 491-92 (7th Cir.

2018).

The Court addresses each of Faulkner’s arguments in turn.

A. Ground 1a: Counsel’s Failure to Attend Hearings

It is clear from the record that Faulkner is pointing to Bailey’s failure to appear at a Final

Pretrial Conference held on June 25, 2019. At that hearing, the Court noted that the Speedy

Trial clock was tolled due to Faulkner’s pending motion for a psychiatric exam, see 18 U.S.C.

§ 3161(h)(1)(D), and it reset the Final Pretrial Conference to a later date. No substantive

matters were addressed or decided at that hearing. There is no evidence in the record that

Bailey failed to attend any other hearing in this case.

Even if Bailey’s failure to attend a court hearing was deficient, Faulkner was not

prejudiced by his absence. First, absence from a single hearing is not equivalent to the

wholesale abandonment of or “non-representation” by counsel at issue in United States v.

Cronic, 466 U.S. 648 (1984), where prejudice can be presumed. The Court hearing in question

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was not a critical stage of Faulkner’s criminal proceedings for which the presence of counsel was

required. No substantive issue was addressed, and no procedural right was at risk. See Schmidt

v. Foster, 911 F.3d 469, 491-92 (7th Cir. 2018). Additionally, in the broader case, Bailey did

not fail to subject the Government’s case to adversarial testing; he simply failed to show up for a

single hearing at which essentially nothing important happened. Finally, there is no suggestion

of circumstances in which no lawyer could provide competent counsel.

As for prejudice under the Strickland standard, had Bailey attended the June 25, 2019,

Final Pretrial Conference, his presence would not have had a reasonable chance of changing the

outcome. Even if he had been there, the Court would have noted the pending motion and

rescheduled the hearing, which is exactly what happened in his absence. Thus, his failure to

attend that one hearing does not warrant § 2255 relief.

B. Ground 1b: Explanation of the Criminal Process

Faulkner claims Bailey failed to explain the criminal process to her in terms she could

understand in light of her “mental and educational deficiency.” This assertion is belied by her

sworn statements at her Rule 11 plea colloquy and in her plea agreement as well as her

articulation of key aspects of the process in her § 2255 motion. In addition, Faulkner fails to

explain her alleged comprehension deficiencies or to specify the issues about which she was

confused. She has further failed to point to objective facts to show a reasonable probability that

she would not have pled guilty had Bailey explained something differently.

The purpose of the plea colloquy is to ensure that a defendant is not mistaken about the

consequences of pleading guilty, that she is doing so knowingly, voluntarily, and competently,

and that there is indeed a factual basis for the plea. See United States v. Rea-Beltran, 457 F.3d

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695, 700-01 (7th Cir. 2006). “[T]he representations of the defendant. . . at [a plea hearing], as

well as any findings made by the judge accepting the plea, constitute a formidable barrier in any

subsequent collateral proceedings. Solemn declarations in open court carry a strong

presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); see Bridgeman v.

United States, 229 F.3d 589, 592 (7th Cir. 2000).

When a district court conducts a Rule 11 colloquy, it is not putting on a show for

the defendant, the public, or anybody else. The purpose of a Rule 11 colloquy is

to expose coercion or mistake, and the district judge must be able to rely on the

defendant's sworn testimony at that hearing. Because the court takes a criminal

defendant’s rights at a change-of-plea hearing very seriously, it is reasonable to

expect, and demand, that the criminal defendant do so as well. For that reason, a

defendant is normally bound by the representations [s]he makes to a court during

the colloquy. Justice would be ill-served, and the utility of the Rule 11 colloquy

would be undermined, by allowing [the petitioner] to renege on [her]

representation under oath to the district court. . . .

Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010) (internal quotations and citations

omitted). The petitioner bears a heavy burden of overcoming the presumption that her sworn

plea colloquy statements were true. See United States v. Hardimon, 700 F.3d 940, 944 (7th Cir.

2012).

In Faulkner’s plea agreement, she acknowledged that she had read the agreement,

discussed it with her counsel and understood it, and that she had discussed the Government's

case and her possible defenses with her counsel. She further stated that she was fully satisfied

with her counsel’s representation. She acknowledged that she was guilty of the charged offense

because she had actually committed conduct that violated each element of the offense, which

were listed in the plea agreement. In exchange for the Government’s concessions in the plea

agreement, she also stated that, with certain inapplicable exceptions, she waived her right to

appeal or collaterally her conviction and sentence.

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At the plea hearing, Faulkner testified under oath after the Court warned her that any

false or untrue statement could later be used against her in a prosecution for perjury or making a

false statement. Faulkner reported that she was 20 years old and had a tenth-grade education

and could read and understand English. She reported that she was on certain psychological

medications but that they did not affect her ability to understand what was occurring at the

hearing. Faulkner told the Court she was fully satisfied with Bailey’s representation and advice,

and that she understood the charge against her, its possible penalties, her rights as a defendant,

and that she did not have to plead guilty. She further told the Court three times that no threats or

promises had been made to her to induce her to plead guilty and twice that she was pleading

guilty as her own free and voluntary act. She further confirmed that the negotiated promises to

her in the plea agreement were the reason she intended to plead guilty.

In a sealed cooperation addendum to the plea agreement, Faulkner agreed to cooperate

fully with the Government, including by providing complete and truthful information about

criminal activity. In return, the Government agreed that,

based upon substantial assistance rendered through the complete and total

cooperation of Defendant, the United States may, in the sole discretion of the

United States Attorney, file either a motion under § 5Kl.1 of the Sentencing

Guidelines or a motion under Rule 35 of the Federal Rules of Criminal Procedure

advising the Court of a recommended reduction in sentence.

Cooperation Addendum 2-3 (Doc. 36). Faulkner further agreed that the Government would not

be bound by its promises if she breached the plea agreement.

Faulkner confirmed she had discussed the sentencing guidelines with Bailey, and when

she expressed hesitancy when the Court asked whether they had talked about the sentencing

guidelines table, the Court took a break so they could review it. The Government set forth the

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factual basis for the guilty plea, including that Faulkner conspired to distribute

methamphetamine and that her relevant conduct exceeded 4.5 kilograms of methamphetamine

ice. Faulkner agreed that this was correct. Faulkner then entered a guilty plea. The Court

concluded that there was a factual basis for Faulkner’s plea, that she had knowingly, voluntarily

and competently pled guilty, and that she was guilty of the charge. The Court eventually

sentenced Faulkner to 180 months in prison, below the applicable sentencing guideline range of

210 to 240 months.

Faulkner has not offered any legitimate reason why, after confirming in the plea

agreement and the plea hearing that she understood the proceedings and was happy with her

counsel’s advice, the presumption that she was telling the truth then should be rejected now.

Additionally, she does not explain exactly what she misunderstood or point to objective facts

showing why a full understanding of that aspect of her case would have had a reasonable chance

of causing her not to plead guilty and to go to trial.

Indeed, the objective facts suggest Faulkner had a good reason for pleading guilty. The

Presentence Investigation Report indicates there was plenty of evidence of her guilt. See PSR

¶¶ 10-27. For pleading guilty, she received a 3-level reduction in her offense level, which

would have lowered her anticipated sentencing range by several years. Additionally, the

Government agreed in a modification to the plea agreement to recommend a 180-month

sentence, in line with the guideline sentencing range anticipated at the plea hearing but

substantially lower than the range found in the PSR. Faulkner was also on the path to receive a

Rule 35(b) sentence reduction if her cooperation continued. It would not be reasonable to

believe that, in light of substantial evidence against her, she would have foregone the great

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benefits of the offense level reduction and possible Rule 35 motion for a sentence reduction she

obtained by pleading guilty.

In sum, the record of the case shows that Faulkner understood the consequences of

pleading guilty such that, as the Court found at the plea colloquy, she entered a knowing,

voluntary, and competent guilty plea. Faulkner is not entitled to § 2255 relief on this ground.

C. Ground 2: Promised Sentence Reduction

Faulkner claims Bailey was constitutionally ineffective by promising her that if she made

a “post-arrest statement”—which the Court believes to be referring to a proffer interview with

law enforcement officers—she would get her sentence cut by a third, and then failing to demand

that the Government ask for this reduction.

As a preliminary matter, Faulkner testified under oath numerous times that no threats or

promises had been made to her other than those contained in the plea agreement documents, so

the Court confines its examination to those documents. As noted above, the plea agreement

reflects that Faulkner was giving up her right to challenge her sentence in the current

circumstances, and the cooperation addendum reflects that Faulkner would “cooperate fully with

the United States.” The Government promised to exercise its discretion in good faith to ask the

Court for a sentence reduction under U.S.S.G. § 5K1.1 or Rule 35(b) if her cooperation was

“total and complete.”

The Court assumes that Faulkner provided complete and truthful information to the

Government in compliance with her plea agreement. Nothing in her motion indicates otherwise.

However, filing a § 2255 motion to seek a lower sentence, a right she gave up with her guilty

plea, is inconsistent with “total and complete” cooperation. Indeed, the Government has

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historically used its discretion to view any appeal of or collateral attack on a sentence—after a

waiver of those rights—as a lack of “total and complete” cooperation because such an action

challenges the result of the criminal proceeding. Bailey so advised Faulkner when she inquired

about filing a notice of appeal months after her sentencing.

With respect to Bailey’s failure to challenge the Government’s lack a motion at

sentencing for a reduction under U.S.S.G. § 5K1.1, he was not deficient in that respect. The

Government promised to file either a § 5K1.1 motion at sentencing or a Rule 35(b). At the time

of sentencing, as it almost always does in this district, the Government elected not to file a

§ 5K1.1 motion in favor of filing a Rule 35(b) motion later to better ensure continuing

cooperation. Bailey had no grounds to object that the Government elected one of the

permissible options, so his failure to demand a § 5K1.1 motion at that time was not deficient.

Nor was it prejudicial to Faulkner. Had Bailey objected, the Court would not have forced the

Government to chose a § 5K1.1 motion over a later Rule 35(b) motion. Unfortunately for

Faulkner, the Government had one year to file a Rule 35(b) motion based on her cooperation

within the year after her sentencing, and by that time she had filed this § 2255 motion

inconsistent with her promise to give “total and complete” cooperation. The Government never

promised to seek a reduction where Faulkner’s cooperation was not “total and complete.”

As for Faulkner’s suggestion that the Court grant her a sentence reduction at this time,

Rule 35(b) allows the Court to reduce a defendant’s sentence upon a motion from the

Government. It does not, however, allow the Court to reduce a defendant’s sentence based on

her own motion. In this case, the Government has not filed a motion under Rule 35(b), and the

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Court cannot compel it to file such a motion.1

For these reasons, Faulkner is not entitled to § 2255 relief on Ground 2.

D. Ground 3: Threats Regarding Sentence Reduction

Faulkner claims Bailey was constitutionally ineffective by threatening her with a longer

sentence and no reduction if she filed this § 2255 motion. This is most certainly not

constitutionally deficient performance. Instead, it reflects competent advice regarding the

matters discussed in the previous section: if Faulkner filed this § 2255, the Government would

construe that act as a failure to give “total and complete” cooperation and would exercise its

discretion to not seek a reduction in her sentence. This was not a threat from counsel but an

accurate description of the legal consequences, based on counsel’s knowledge of the

Government’s practices in this district, that would follow if she did file a § 2255 motion after

giving up her right to do so. Bailey’s conduct in this regard does not justify § 2255 relief.2

III. Conclusion

For the foregoing reasons, pursuant to Rule 4(b) of the Rules Governing Section 2255

Proceedings, the Court finds that it is plain from the motion and the record of the prior

proceedings that the petitioner is not entitled to relief under § 2255. Thus, there is no need for

1 Faulkner makes no allegation that the Government failed to file a Rule 35(b) motion for any

improper reason. See Wade v. United States, 504 U.S. 181, 185-86 (1992) (prosecutor may not

decline to file seek a sentence reduction based on unconstitutional motive).

2 The Court is familiar with the Government’s prior practice when this situation has arisen in

other cases. When a petitioner files a § 2255 motion after promising not to do so and places a

potential Rule 35(b) sentence reduction motion at risk, the Government usually contacts the

petitioner to inform them of that risk and indicates that if the petitioner timely withdraws the

§ 2255 motion, the Government might still file a Rule 35(b) motion. The Court approves of this

practice to give a petitioner a second chance to rethink the risks of filing a § 2255 motion. The

Court assumes the Government did this with Faulkner, but its ruling in no way depends on that

step.

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an evidentiary hearing. The Court DENIES Faulkner’s § 2255 motion (Doc. 1) and DIRECTS

the Clerk of Court to enter judgment accordingly.

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings and Rule

22(b)(1) of the Federal Rules of Appellate Procedure, the Court considers whether to issue a

certificate of appealability of this final order adverse to the petitioner. A certificate of

appealability may issue “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004);

Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). To make such a showing, the

petitioner must “demonstrate that reasonable jurists could debate whether [the] challenge in [the]

habeas petition should have been resolved in a different manner or that the issue presented was

adequate to deserve encouragement to proceed further.” Ouska, 246 F.3d at 1046; accord Buck

v. Davis, 137 S. Ct. 759, 773 (2017); Miller-El v. Cockrell, 537 U. S. 322, 327 (2003). The

Court finds that Faulkner has not made such a showing and, accordingly, DECLINES to issue a

certificate of appealability.

IT IS SO ORDERED.

DATED: December 8, 2021

s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE

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