Elion v. United States

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

OTIS R. ELION,

Petitioner,

v. Case No. 3:17-cv-01349-JPG

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM AND ORDER

This matter comes before the Court on remand from the Court of Appeals for the Seventh

Circuit. (Doc. 58). Previously, the Court denied the motion to vacate or correct sentence pursuant

to 28 U.S.C. § 2255, (Docs. 1, 37), filed by the Petitioner, Otis R. Elion.

Having conducted an evidentiary hearing, reviewed all briefs, testimony, and other

relevant information; the Court finds that the representation provided by the Petitioner’s

attorney, Judith Kuenneke, did not fall below an objective standard of reasonableness. Therefore,

while her failure to object prejudiced Elion, Kuenneke did not provide ineffective assistance of

counsel. Accordingly, the Court hereby DENIES Elion’s § 2255 petition. (Doc. 1).

I. INTRODUCTION

Otis R. Elion filed a § 2255 petition alleging that he was incorrectly sentenced as a career

offender and that his attorney was ineffective for not objecting to his career offender status at

sentencing. Previously, this Court found that Elion was correctly sentenced. As a result, the

Court found that he was not prejudiced by Kuenneke’s refusal to object, and, therefore, she had

provided effective assistance. Accordingly, the Court denied his petition.

The Court of Appeals for the Seventh Circuit disagreed. Using the categorical approach,

the Appellate Court found that Elion’s Illinois convictions could not be used for the career

offender calculation. Without those Illinois convictions, Elion only had one prior controlled

substance offense on his record—less than the two prior convictions required for career offender

status. Consequently, the Court of Appeals found that Elion was incorrectly sentenced as a career

offender, and, as a result, that he was prejudiced by Kuenneke’s failure or refusal to object to

the enhancement at his sentencing. The Court of Appeals declined to address whether

Kuenneke’s performance was deficient. The Appellate Court remanded this case on

that question.

There are both factual and legal disputes here. The factual disputes concern Kuenneke’s

familiarity and use of the categorical approach, as well as her honesty and credibility. These

factual disputes must be resolved before the Court can analyze Kuenneke’s performance.

As an understanding of the nuances of the categorical approach is required to evaluate the

facts of this case, for ease of understanding, the Court will begin by explaining the categorical

approach, then provide the background of this case, followed by the Court’s factual analysis and

ultimate findings. Next, the Court will lay out the appropriate standard for evaluating ineffective

assistance of counsel claims—including Bridges v. United States, 991 F.3d 793, 793 (7th Cir.

2021)—before moving to the legal analysis and conclusion.

II. CAREER OFFENDER ENHANCEMENT & CATEGORICAL APPROACH

A. Career Offender Enhancement

The relevant portion of the U.S. Sentencing Guideline manual reads:

Career Offender

A defendant is a career offender if . . . the defendant has at least two prior felony

convictions of . . . a controlled substance violation . . . . A career offender's criminal

history category in every case under this subsection shall be Category VI.

U.S.S.G. § 4B1.1 (emphasis added) (hereinafter “career offender enhancement”). The Guidelines

define a “controlled substance violation” as:

An offense under federal or state law, punishable by imprisonment for a term

exceeding one year, that prohibits the manufacture, import, export, distribution, or

dispensing of a controlled substance (or a counterfeit substance) or the possession

of a controlled substance (or a counterfeit substance) with intent to manufacture,

import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b) (hereinafter “§ 4B1.2(b)” or “Guideline definition”). Therefore, any

defendant with two or more prior convictions for a controlled substance violation is a career

offender and subject to the higher Guideline range.

B. Categorical and Modified Categorical Approaches

Determining whether a prior conviction is a predicate for a sentence enhancement is a

matter of statutory interpretation. Sentencing courts apply a “categorical approach” to determine

whether a prior conviction is a “controlled substance offense” under the Guidelines. See Taylor

v. United States, 495 U.S. 575, 600–01 (1990); United States v. Montez, 858 F.3d 1085, 1096 n.3

(7th Cir. 2017) (noting that Mathis—Taylor’s progeny—applies to career-offender cases).

The categorical approach requires that courts “compare the elements of the statute

forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime . . . .”

Descamps v. United States, 570 U.S. 254, 257 (2013); see also Shepard v. United States, 544

U.S. 13, 19–20 (2005) (holding that a conviction based on a guilty plea may also qualify as a

predicate offense). If the statute’s elements are the same as (or narrower than) those of the

generic offense, then a conviction under that statute qualifies as a predicate offense. Descamps v.

United States, 570 U.S. at 257. However, if the statute of conviction is broader than the generic

offense, then the court must determine whether the statute of conviction is “divisible” or

“indivisible.” Id. at 261.

A statute is divisible if it “comprises multiple, alternative versions of the crime,” Id. at

262, and lists alternative elements, not alternative means. Mathis v. United States, 579 U.S. 500,

504–05 (2016). “‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things

the ‘prosecution must prove to sustain a conviction.’” Id. at 504 (quoting Elements, BLACK’S

LAW DICTIONARY (10th ed. 2014)). In contrast, “means” are the factual circumstances or events

that “need neither be found by a jury nor admitted by a defendant.” Id. (citing Means, BLACK’S

LAW DICTIONARY (10th ed. 2014)).

If the court finds that the statute consists of “a single, indivisible set of elements,”

Descamps at 258, then the statute is “indivisible,” and convictions under that statute fail to

qualify as predicate offenses.1 Mathis v. United States, 579 U.S. at 509. But, if the statute lists

alternative elements, and “at least one, but not all of those crimes match the generic version,”

then the statute is “divisible,” and convictions under that statute may qualify as a valid predicate.

If divisibility is not abundantly clear from a plain reading of the statute and there is no

mandatory federal authority, a court turns to the state of conviction’s case law to see whether

state courts treat the statute as divisible. Id. at 517–18. This analysis begins with the relevant

state’s supreme court. If there is no indication from the state supreme court, a court next looks at

intermediate state appellate courts.

If neither the text of the statute nor state case law offer a clear answer, then a court

“peeks” at the record documents. Id. at 518-19 (citing Rendon v. Holder, 782 F.3d 466, 473-74

(CA9 2015) (opinion dissenting from denial of reh’g en banc). These record documents, the

1 When a statute is indivisible, the offense is not de jure an invalid predicate. When a statute is indivisible, whether

that conviction is a predicate for the enhancement depends on whether the statute of conviction matches or is

narrower than the Guidelines. Theoretically, a statute can be indivisible and also narrower than the Guidelines.

However, because the divisibility analysis is only performed when a court has already determined that the statute of

conviction is broader than the Guidelines; for all intents and purposes, if a statute is deemed indivisible, a conviction

under the indivisible statute is, de facto, an invalid predicate for the enhancement.

Shepard documents, include the indictment, jury instructions, and plea colloquy; but a court is

not strictly limited to just those documents. Shepard v. United States, 544 U.S. at 26 (2016).

A court “peeks” at the Shepard documents to evaluate whether a state conceives of a

statute as divisible or indivisible. The key indicator of divisibility is when the Shepard

documents show that one discrete offense is listed, to the exclusion of any other offenses in the

statute. If a state charges and convicts of only discrete offenses listed in the statute, then that

suggests divisibility. On the other hand, if the state charges and convicts of a general violation of

the statute, or lists more than one discrete offense, then the statute is indivisible.

If the Shepard documents do not offer a clear answer, then the statute’s divisibility is

ambiguous. When a statute’s divisibility is ambiguous, the statute fails to satisfy “Taylor’s

demand for certainty when determining whether a defendant was convicted of a generic offense.”

Shepard, 544 U.S. at 21 (internal quotations omitted). Accordingly, courts err on the side of

indivisibility and treat ambiguous statutes as indivisible.

Importantly, while a “peek” at the documents is appropriate, courts do not look to the

underlying facts. James v. United States, 550 U.S. 192, 214 (2007). See also Sykes v. United

States, 564 U.S. 1, 7 (2011). Thus, courts must be cautious to avoid conflating factual

descriptions of crimes laid out in the Shepard documents with elements of a discrete offense.

If a statute is divisible, then a sentencing court must determine whether the specific

“discrete” offense fits within the Guideline definition. When evaluating whether a discrete

offense is covered under the Guidelines, courts employ a “modified categorical approach.”

Under the modified categorical approach, a court examines the Shepard documents to find

“which element played a part in the defendant’s conviction.” Descamps, 570 U.S. at 255. If the

elements of the discrete offense lay out conduct that matches or is narrower than the Guidelines,

then the conviction is a valid predicate for the enhancement. However, if one or more of the

elements of the discrete offense is broader than the Guidelines, then the discrete offense is not a

valid predicate.

C. Illinois Statutes

Unlawful Delivery of a Look-Alike Substance Within 1,000 Feet of Public Housing

Property, 720 ILL. COMP. STAT. 570/407(b)(3) (1998), (hereinafter “Section 407(b)(3)”),

provides that:

(b) Any person who violates:

. . . .

(3) subsection (e) of Section 401 or Subsection (b) of Section 404 . . . within

1,000 feet of . . . residential property owned, operated or managed by a

public housing agency . . . is guilty of a Class 2 felony, the fine of which

shall not exceed $200,000 . . . .

Id. Section 407(b)(3) is an enhancement statute for Section 401(e) or 404(b) violations that occur

within 1,000 feet of public housing. Section 401(e) is irrelevant here because Elion’s prior

convictions were under Section 407(b)(3) (in 1999) and 404(b) (in 2000). Section 404(b),

Unlawful Delivery of a Look-Alike Substance, provides:

(b) It is unlawful for any person knowingly to manufacture, distribute, advertise, or

possess with intent to manufacture or distribute a look-alike substance. Any

person who violates this subsection (b) shall be guilty of a Class 3 felony, the

fine of which shall not exceed $150,000.

720 ILL. COMP. STAT. 570/404(b) (1999) (hereinafter “Section 404(b)”). Since Section 404(b) is

the underlying statute for Section 407(b)(3) (and 401(e) does not involve “look-alike”

substances), a conviction under Section 404(b) must be a “controlled substance offense” under

the Guidelines for either Illinois conviction to qualify as a valid predicate for the career offender

enhancement.

III. BACKGROUND

A. Elion’s Conviction and Sentencing

On November 8, 2016, Otis R. Elion was indicted for distribution of methamphetamine.

Elion’s Presentence Investigation Report (“PSR”) categorized him as a career offender because

he had three prior drug crime convictions: a federal conviction in 2006 and two Illinois

convictions; one in 2000 and another in 1999 (hereinafter “2000 conviction” and “1999

conviction” respectively).

However, Elion believed that neither of his Illinois convictions were valid predicates

because they were convictions for “look-alike” substances, not actual controlled substances.

Also, because he had been convicted for a comparatively small amount of drugs in the past,

Elion believed that it was unjust to apply the career offender enhancement to him. Elion wanted

his attorney, Judith Kuenneke, to object to the enhancement on those grounds. Yet, Kuenneke

refused to do so, believing his objections were meritless. Instead, Kuenneke raised other

arguments in mitigation. Kuenneke did argue that the career offender enhancement is generally

unfair to nonviolent offenders, but did not object to the enhancement as it applied to Elion.

On April 26, 2017, this Court found that Elion was a career offender and sentenced him

to 167 months in prison.

B. Elion’s § 2255 Petition

On December 13, 2017, approximately eight months after his sentencing, Elion moved to

vacate or adjust his sentence pursuant to 28 U.S.C. § 2255.

In his § 2255 petition, Elion raised a new argument. He argued, because Section 404(b)

proscribed “advertis[ing]” a controlled substance while the Guideline definition of a “controlled

substance offense” did not prohibit “advertising”; that Section 404(b) was not a categorical

match with the Guidelines. Consequently, neither of his Illinois convictions were valid predicates

for the career offender enhancement. If that were true, then Elion was incorrectly sentenced as a

career offender. Elion believed that Kuenneke provided ineffective assistance of counsel by

refusing to raise this categorical approach argument at his sentencing. Elion’s convictions at

controversy were:

• A 1999 Illinois conviction for unlawful delivery of a look-alike substance

within 1,000 feet of public housing property, in violation of 720 ILL. COMP.

STAT. 570/407(b)(3). (Section 407(b)(3)).

• A 2000 Illinois conviction for unlawful delivery of a look-alike substance, in

violation of 720 ILL. COMP. STAT. 570/404(b). (Section 404(b)).

This Court found that both convictions qualified as valid predicates for the career offender

enhancement. The Court determined, because he was not prejudiced by Kuenneke’s refusal to

object, that Kuenneke provided effective assistance. Accordingly, the Court denied his petition.

C. Elion’s Appeal

On appeal, the Appellate Court compared the Illinois statutes of Elion’s convictions to

the Sentencing Guideline definition of a “controlled substance violation.” As Section 407(b)(3)

was an enhancement statute for Section 404(b), the Court of Appeals applied the categorical

approach to Section 404(b).

The Court of Appeals found two potential mismatches between Section 404(b) and the

Guidelines: 2 (1) Section 404(b) uses the term “look-alike substance” whereas the Guidelines use

the term “counterfeit substance;” and (2) Section 404(b) uses the term “advertise” whereas the

Guideline definition does not. Because there were potential mismatches between Section 404(b)

and the Guidelines, the Court of Appeals analyzed both.

2 The Seventh Circuit refers to the “counterfeit” and “look-alike” issue as a “potential mismatch.” For ease of

reading and reference, “mismatch” or “potential mismatch” are used interchangeably throughout this opinion. This

should not be taken to imply that there is or is not a mismatch.

The Appellate Court did not resolve whether Illinois’s look-alike statute was a categorical

match with the Guideline definition, but indicated the issue would require careful consideration

in the future. Addressing the “advertise” mismatch, the Court of Appeals found that the term

“advertise” made Section 404(b) broader than the Guidelines. The Appellate Court conducted a

divisibility analysis on Section 404(b); that analysis was complicated by the fact that Elion’s

Shepard documents show that he was charged and convicted for unlawful “delivery” of a

controlled substance, but the term “delivery” does not appear in Section 404(b). After exhausting

all available analytical tools, the Appellate Court found that Section 404(b)’s divisibility was

ambiguous. Since anything short of certainty requires that courts treat the statute as indivisible,

the Court of Appeals treated Section 404(b) as indivisible.

As Section 404(b) was both broader than the Guidelines and indivisible; the Court of

Appeals concluded that Section 404(b) offenses—including Elion’s Illinois convictions—cannot

be used as predicates for the career offender enhancement. Because at least two valid convictions

are required for the career offender enhancement, and Elion only had one valid conviction in

2006 remaining, Elion did not qualify as a career offender. Therefore, Elion was incorrectly

sentenced, and he was prejudiced by Kuenneke’s failure or refusal to object.

The Court of Appeals declined to analyze whether Kuenneke was deficient and remanded

the case on that question. The Appellate Court indicated that Bridges v. United States would be

helpful in this Court’s analysis. See Bridges, 991 F.3d at 793.

D. Evidentiary Hearing

The Court called an evidentiary hearing to obtain more information on Kuenneke’s

performance, research, and reasoning. (Docs. 68, 79).

Kuenneke testified that she looked at both of Elion’s prior state convictions. (Doc. 80).

Upon reading the text of the statute, she noticed the potential mismatch between “counterfeit”

and “look-alike.” (Id.). Additionally, she noticed the potential mismatch involving “advertising.”

However, she did not explicitly include this information in her affidavit. See (Doc. 13, Ex. A.).

Ultimately, Kuenneke concluded that there was no mismatch between “counterfeit” and

“look-alike.” While she concluded there was a mismatch between Section 404(b) and the

Guidelines based on “advertising,” she also concluded that “delivery” and “distribute” were

interchangeable and that Section 404(b) was divisible. Then, applying the modified categorical

approach, Kuenneke determined that Elion’s Illinois convictions qualified as valid predicates for

the career offender enhancement.

1. Kuenneke’s Analysis of Section 404(b)

Elion was convicted of a Section 407(b)(3) violation in 1999, and a Section 404(b)

violation in 2000. Ordinarily, a categorical approach analysis would involve analyzing both

Sections 407(b)(3) and 404(b). However, Section 407(b)(3) is an enhancement statute for Section

404(b). As it is impossible to perform a Mathis analysis on an enhancement statute, a categorical

approach analysis of either conviction required analyzing Section 404(b).

The first step of the analysis was identifying the correct statute (Section 404(b)).

Kuenneke testified that she identified the underlying statute and performed a Mathis analysis on

Section 404(b):

Q: Okay. So here’s 570/407(b)(3)[, the penalty statute]. Did you take a look at this

subsection?

A: Yes.

Q: What were you able to determine about this subsection?

A: That subsection directed me to [Sections] 401 or 404.

Q: Okay. And why are you able to follow the cross reference and why not stop here

at [the penalty statute, Section 407](b)(3)?

A: Because [it] is a penalty statute.

Q: Okay.

A: You can’t do a Mathis analysis on a penalty statute.

Evid. Hr’g. Tr., 21:24-22:10, Mar. 6, 2024 (Doc. 80). When Kuenneke was asked what statutes

applied to Elion, she responded that Section 404(b) applied to both convictions:

Q: And what’s [Section] 404?

A: [Section] 404 is the actual charging statute.

Q: Okay. That’s the look-alike statute we were looking at earlier [for the

2000 Conviction]?

A: Correct.

Q: So at this point you have determined that the 1999 conviction is under [Section

404(b)]

A: Correct.

Q: The same statute as the 2000 conviction –

A: Yes.

Q: – that we looked at earlier?

A: My notes reflect that they are the same statute to be analyzed, yes.

Evid. Hr’g. Tr., 23:3-15, Mar. 6, 2024 (Doc. 80). Having determined that Section 404(b) was the

applicable statute, Kuenneke applied the categorical approach. She recognized the two potential

mismatches between Section 404(b) and the Guidelines—the “look-alike” mismatch and the

“advertising” mismatch.

2. Kuenneke’s Analysis of the “Look-alike” Potential Mismatch

Kuenneke recognized that the Guidelines used the term “counterfeit” while Section

404(b) used the term “look-alike”; Kuenneke researched both terms. She found that, while the

Seventh Circuit had not ruled on Illinois’s look-alike statute before, the Seventh Circuit had

ruled on a similar Indiana statute. United States v. Hudson, 618 F.3d 700, 701 (7th Cir. 2010).

In Hudson the Seventh Circuit determined that the term “counterfeit,” as it is used in the

Guidelines, included two elements: a “made in imitation” element and an “intent to deceive.”

Thus, for the Indiana statute to be a categorical match with the Guidelines, the term “look-alike”

in Indiana’s statute must include those same two elements; the Seventh Circuit determined that it

did, and that Indiana’s statute was a categorical match with the Guidelines. Though Hudson did

not address the Illinois law, the Appellate Court cited an earlier, Eighth Circuit case that did

analyze the Illinois statute. United States v. Robertson, 474 F.3d 538, 538 (8th Cir. 2007). Before

the Seventh Circuit had decided Hudson, the Eighth Circuit, based on similar reasoning, had

concluded that the term “counterfeit” in the Guidelines included the same two elements,

(imitation and deception) and that Illinois’s definition of “look-alike” included those same

elements. Id. Therefore, both Appellate Courts found the respective Indiana and Illinois statutes

were categorical matches with the Guidelines. Kuenneke found Hudson first, which led her

directly to Robertson. Evid. Hr’g. Tr., 24:10-25:15, Mar. 6, 2024 (Doc. 80).

Kuenneke was asked what part of the Illinois statute she believed included an intent to

deceive. She pointed to the “would lead a reasonable person to believe” language. Evid. Hr’g.

Tr., 83:10-85:2, Mar. 6, 2024 (Doc. 80). Based on her research, supported by her own

interpretation of the statute and case law, Kuenneke concluded that Illinois’s definition of “look-

alike” included both an imitation and deception element. Based on that determination, finding no

contradictory authority, Kuenneke concluded that Elion had no categorical approach argument

on the “look-alike” potential mismatch.

3. “Advertise” Mismatch and Divisibility

Unlike “look-alike” mismatch, where there were similar terms to compare, Section

404(b) included “advertise” while the Guidelines did not. Kuenneke concluded on that basis that

Section 404(b) was not a categorical match.3 However, if applying the categorical approach

yields a mismatch, the analysis does not end; a divisibility analysis is required.

3 Originally, the Government had argued “advertising” fell within the scope of the Guidelines, but the Court of

Appeals disagreed. The Petitioner attempts to conflate Kuenneke’s analysis with the Government’s analysis, arguing

that, because Kuenneke’s affidavit was used to support the Government’s argument, that she came to a similar

conclusion. There is no indication from her affidavit or testimony that she came to the same conclusion as the

Government. The Court sees no reason to impute the Government’s position onto Kuenneke’s.

Accordingly, Kuenneke proceeded with a divisibility analysis. She began by searching

for Illinois case law on Section 404(b). She could find no Illinois Supreme Court case law on the

issue, and she did not specify whether she looked at state intermediate court opinions. Kuenneke

also searched federal case law, but found nothing on point.

Unable to find case law, Kuenneke turned back to the text of the statute for clues as to the

statute’s divisibility. In her affidavit, Kuenneke noted that the statute listed multiple “felony

classifications,” and, she believed, listed multiple discrete offenses. While her findings were not

dispositive, this implied that the statute was divisible. However, an implication is insufficient, so

Kuenneke moved forward with the divisibility analysis.

Next, Kuenneke moved to Elion’s Shepard documents. She noticed that Elion’s Illinois

convictions used the term “delivery” while Section 404(b) did not. If “delivery” meant that Elion

was convicted of a general violation of Section 404(b), then the statute was indivisible. However,

if “delivery” was synonymous with a specific, discrete offense in Section 404(b), that would

suggest divisibility. “Distribute” or “dispense” were the most analogous to “delivery,” and, based

on Kuenneke’s extensive experience with Illinois convictions, “delivery” and “distribute” were

used interchangeably.

While Kuenneke’s training and experience led her to believe the two terms were

interchangeable, she searched for evidence that may support that conclusion. To that end, she

researched the plain meaning and statutory definitions of both terms and searched for relevant

case law. Kuenneke found no case law within nor outside the Seventh Circuit on this issue.

Though unable to find out-of-circuit case law on the Illinois definition of “delivery,” Kuenneke

did find a Fifth Circuit case dealing with a similar, Texan statute. United States v. Hinkle, 832

F.3d 569, 569 (5th Cir. 2016).

In Hinkle, the Fifth Circuit evaluated whether a conviction under Texan law for

“delivery” of a controlled substance matched the Guideline definition; specifically the Fifth

Circuit asked “whether the definition of ‘deliver’ in [the Texan statute] . . . sets forth different

offenses such that delivering a controlled substance by ‘offering to sell’ [a controlled substance]

is a separate and distinct offense from delivering a controlled substance by ‘transfer.’” United

States v. Hinkle, 832 F.3d at 573. The Fifth Circuit found the Texan delivery statute was not

divisible and that a conviction for delivery could not be used as a valid predicate for the career

offender enhancement. After analyzing Hinkle, Kuenneke determined that it would not apply to

Elion’s situation. See (Doc. 13 Ex. A at 5).

Having found neither mandatory nor highly persuasive authority on the “distribute” and

“delivery” interchangeability issue, Kuenneke turned back to the text. It is at this point in the

analysis that the Seventh Circuit’s and Kuenneke’s analyses diverged. The Seventh Circuit

ultimately concluded that whether the terms were interchangeable was ambiguous. Kuenneke, on

the other hand, based on her legal and definitional research and her own personal experience in

hundreds of cases involving Illinois drug convictions through twenty-nine years of practice,

concluded that “delivery” and “distribute” were interchangeable.

Q: Okay. So when the Seventh Circuit looked at those Shepard documents . . . and

saw “delivery,” they thought it was ambiguous because it sounded – but it sounds

like it wasn’t ambiguous to you?

A: No.

Q: Why wasn’t it ambiguous to you?

A: I had researched both terms, and I’ve also dealt with Illinois state paperwork.

“Delivery and “distribution” are usually used interchangeably. That’s based on

my experience.

Q: And when you say your “experience,” you said you have done hundreds of drug

cases?

A: Yes.

Q: All here in Illinois?

A: Yes.

Q: And typically in those cases you would be pulling those kind of record

documents?

A: Yes.

Q: So in your capacity as a Federal Public Defender, you have looked at those kind

of documents in hundreds of cases?

A: Correct.

Evid. Hr’g. Tr., 28:17-29:14, Mar. 6, 2024 (Doc. 80). Because Kuenneke determined that

“distribute” and “delivery” were interchangeable, she concluded that Elion was convicted of the

discrete offense of “distribution” of a controlled substance. The presence of one discrete offense

at the exclusion of others within Elion’s Shepard documents, in combination with the other

indicators in the divisibility analysis, was enough to conclude that Section 404(b) was divisible.

Having determined that Section 404(b) was divisible, Kuenneke applied the modified

categorical approach. Elion’s Shepard documents showed that he was convicted of “delivery” of

a “look-alike” substance and Kuenneke had already determined that “delivery” and “distribute”

are interchangeable. Therefore, Kuenneke needed to evaluate whether “distributing” a “look-

alike” substance was conduct covered by the Guidelines. While the discrete offense of

“advertising” was not within the scope of the Guidelines, the discrete offense of “distribution”

was. Accordingly, Kuenneke concluded that Elion’s 1999 conviction was a valid predicate for

the career offender enhancement.

Having concluded that Elion’s 1999 conviction was a valid predicate, Kuenneke

determined that Elion had at least two valid predicates for the enhancement: his 2006 federal

conviction and his 1999 Illinois conviction. Kuenneke did not apply the modified categorical

approach to Elion’s 2000 conviction. Regardless of the outcome of that analysis—whether valid

or invalid—as two valid predicates are all that is required for the career offender enhancement

and Elion had two valid predicate convictions, Kuenneke concluded that Elion qualified as a

career offender.

Kuenneke had applied the categorical approach to both potential mismatches and

concluded that Elion’s two convictions fell within the scope of those Guidelines. There being no

other mismatches, Kuenneke determined that objecting to Elion’s career offender status would

be meritless. When asked why, despite her conclusions, she did not make the argument

regardless, Kuenneke replied that she “didn’t believe it was a viable objection to present to the

Court,” and that she does not raise meritless arguments. Evid. Hr’g. Tr., 33:22-23, Mar. 6, 2024

(Doc. 80)

Though Kuenneke had determined there was no viable objection to Elion’s career

offender status, Kuenneke made other mitigation arguments that she felt were more viable:

[Kuenneke] made basic arguments under 3553(a). [She] discussed [Elion’s]

childhood, that he was raised in poverty; and that he suffered childhood abuse; that

he lived in a gang-infested area; that he joined a gang at an early age; that he accrued

many of his prior convictions while he was in a gang.

[She] discussed his substance abuse issues, his mental health issues. [She]

discussed his health issues and how his health issues would impact his care in the

federal prison. [She] discussed his life expectancy. [She] believe[s] [she] also

addressed recidivism arguments [and] touched on those.

Evid. Hr’g. Tr., 36:18-37:4, Mar. 6, 2024 (Doc. 80). Kuenneke also detailed the research steps

she took in developing those other mitigation arguments. She also raised an objection to the

career offender designation generally, arguing that the enhancement is flawed because

nonviolent offenders or prior convictions for small amounts of drugs receive harsher sentences

than even many violent criminals. However, Kuenneke did not raise the specific argument that

Elion was not a career offender. Evid. Hr’g. Tr., 40:11-41:3, Mar. 6, 2024 (Doc. 80).

IV. FACTUAL ANALYSIS

Kuenneke’s affidavit, testimony, and both briefs dispute Kuenneke’s level of research,

competency, and honesty. The Court has identified the following factual questions:

• Whether Kuenneke identified that Section 404(b) was the underlying statute

for both of Elion’s convictions;

• Whether Kuenneke noticed the potential mismatch between Section

404(b)’s inclusion of “advertis[ing]” and the absence of “advertising” from

the Guideline definition of a controlled substance offense; if so, what the

extent and depth of her research was;

• Whether Kuenneke noticed the potential mismatch between the definition

of “look-alike substances” and “counterfeit substances” in the Guideline

definition of a controlled substance offense; if so, what the extent and depth

of her research was;

• Whether Kuenneke recognized the mismatch between the use of the term

“delivery” in Elion’s Shepard documents, and the term “distribute” in

Section 404(b); if so, what the extent and depth of her research was;

• Whether Kuenneke performed a Mathis analysis on Section 404(b) or

Section 407(b)(3); if so, whether she performed that analysis properly;

• Whether Kuenneke performed a divisibility analysis on Section 404(b); if

so, whether she performed that analysis properly;

• Whether Kuenneke had a sufficient basis to conclude that “delivery” and

“distribute” are interchangeable;

• Whether Subsection c of Kuenneke’s affidavit was truly written in error; if

so, whether Kuenneke had a reasonable basis to conclude that analyzing

Elion’s 2000 conviction was unnecessary; and

• Whether Kuenneke’s testimony was truthful.

The Petitioner argues that Kuenneke’s performance was deficient because she failed to

identify Section 404(b) as the underlying statute, failed to notice both mismatches, failed to

notice an error in the Eighth Circuit’s opinion in Robertson, performed a Mathis analysis on the

wrong statute, failed to adequately research the issues, fundamentally misunderstood the

categorical approach, and failed to properly conduct a divisibility analysis. Additionally, to the

extent that Kuenneke’s testimony expands on or differs from her affidavit, the Petitioner alleges

that Kuenneke’s testimony is dishonest and not credible. The Petitioner is mistaken. Kuenneke

identified the proper statutes, performed the relevant analyses properly, had sufficient basis for

her conclusions, and her testimony was truthful.

A. The “Look-Alike” Potential Mismatch

Kuenneke did not explicitly write that she noticed the “look-alike” potential mismatch in

her affidavit. From that omission, the Petitioner infers that Kuenneke did not notice the

mismatch. Failing to notice this mismatch and “fail[ing] to press” this “obvious argument” is one

of “two glaring errors” that “underscores [Kuenneke’s] deficient performance.” (Doc. 84 at 15).

While Kuenneke testified to noticing this potential mismatch at the evidentiary hearing,

the Petitioner points out that this is “the first time” Kuenneke has explicitly claimed to have

“researched this issue by looking to Seventh Circuit [case] law, Illinois state law, and statutory

definitions.” (Id.) (citing Evid. Hr’g. Tr., 79:10-13, Mar. 6, 2024 (Doc. 80)). The Petitioner

argues that Kuenneke’s testimony was dishonest and “self-serving.” However, even if Kuenneke

noticed the mismatch, the Petitioner argues that Kuenneke still failed to perform proper research

into the issue.

During her testimony, Kuenneke mentioned the Eighth Circuit’s Robertson decision. The

Petitioner takes issue with Kuenneke’s reliance on Robertson. Not only does the Petitioner

believe that Kuenneke improperly based her entire conclusion on that “one out-of-circuit case

alone,” (Id. at 16), the Petitioner also argues, that Robertson “materially misquoted [Illinois’s

look-alike statute] in its analysis by connecting prongs in the statutory definition of ‘look-alike

substance’ with [the conjunction] ‘and’ rather than [the conjunction] ‘or.’” (Id. at 15) (citing

Evid. Hr’g. Tr., 96:1-23, Mar. 6, 2024 (Doc. 80)). Kuenneke’s failure to “evaluate Robertson

closely enough” to realize this alleged error is further evidence of her incompetence because

“[c]ompetent counsel would have realized that this Court owes no deference to another circuit’s

misquote,” (Id.).

The Petitioner pressed Kuenneke on this alleged misquotation—a misquotation the

Petitioner claims was acknowledged by the Seventh Circuit in this case, on appeal:

Q. All right. Mr. Reed also asked you about another case you reviewed. It's the

Robertson case out of the Eighth Circuit. You are familiar with that case?

A. Yes.

Q. Right? You are aware that in Robertson the Eighth Circuit reviewed the Illinois

look-alike statute; right?

A. Yes.

Q. And are you also aware that the Eighth Circuit misquoted the statute in its

analysis?

A. No. I don't recall — I don't recall that.

Q. You said you are familiar with the Seventh Circuit's decision in this case?

A. Yes.

Q. Is that right? And you have read that decision?

A. I have.

Q. You are aware that the Seventh Circuit in this case pointed out that the Eighth

Circuit had misquoted Robertson?

A. I don't recall. I'm not saying it's not there; just I don't recall.

Evid. Hr’g. Tr., 96:1-23, Mar. 6, 2024 (Doc. 80) (emphasis added).

The Petitioner’s arguments are flawed for a multitude of reasons.

1. Kuenneke’s Testimony Does Not Contradict her Affidavit

The Petitioner views Kuenneke’s affidavit as a complete record of her research—any

omissions are intentional. Any testimony that sheds light on the omissions, the Petitioner casts as

a “new story.” In other words, the Petitioner takes the position that, if it is not within the four

corners of the affidavit, it did not occur; any testimony that describes research beyond those four

corners is contradictory and should be disregarded under the sham affidavit doctrine.

The sham affidavit doctrine is reserved for situations where testimony clearly contradicts

a prior sworn statement, without explanation. It would be unrealistic and inefficient to demand

that attorneys include every search, every document, and every theory they pursued in their

research and representation. Kuenneke’s affidavit was drafted in response to Elion’s specific

claims; it stands to reason that, as an experienced attorney, Kuenneke included only information

she believed was commensurate with those claims. At the time of Kuenneke’s affidavit, multiple

appellate courts had found that “counterfeit” and “look-alike” were categorical matches—

including the Seventh Circuit (in the context of Indiana’s statute in Hudson) and the Eighth

Circuit (in the context of Illinois’s statute in Robertson). It is easy to look back at Kuenneke’s

affidavit with the benefit of hindsight and demand additional details on the specific issues where

the legal landscape has since changed; but, to the best of their ability, courts are called to remove

hindsight from the analysis. Defense attorneys have limited time and heavy caseloads; it would

be counterproductive and inefficient to demand that they spell out every single search they

carried out and every single case they found in excruciating detail, on the off chance that the

legal landscape may change on a specific issue, transforming previously irrelevant, extraneous

information into relevant and material information. Additionally, as Elion’s former attorney,

Kuenneke may be reluctant to disclose unnecessary detail related to her representation of Elion.

Testimony that supplements and clarifies her representation is not inherently contradictory; the

Court sees no reason to read and interpret Kuenneke’s affidavit according to the Petitioner’s

“four corners” approach.

Moreover, while it is true that Kuenneke did not explicitly write that she noticed the

“look-alike” and “counterfeit” mismatch, on closer inspection, it is apparent from her affidavit

that she did.

Elion’s § 2255 petition specifically raised the issue of the “advertising” mismatch;

however, Elion initially had taken issue with his “look-alike” convictions being used to enhance

his sentence. The Court finds it highly unlikely Kuenneke would have not researched the specific

issue that Elion raised at the time of his sentencing. In an email to Elion, she informs him that he

qualifies as a career offender based on his two “look-alike” offenses. (Doc. 13, Ex. A at 3). In the

very next sentence Kuenneke writes “[i]n a footnote, counsel added, ‘According to the U.S.

Sentencing Guidelines, the term ‘controlled substance violation’ includes counterfeit substances.

U.S.S.G. § 4B1.2(b).” (Id.). Kuenneke then adds: “Mr. Elion requested information on the use of

look-alike drugs convictions for application of the career offender enhancement. Affiant

informed Mr. Elion that she had requested the paperwork on the prior state convictions.” (Id. at

4) (emphasis added). After more than two months, Kuenneke met with Elion again. Kuenneke

wrote that she had “researched the applicable law including Mathis,” (Id.), and, at that meeting,

that her and Elion discussed “the research on look-alike convictions, and the career offender

enhancement and three drug offenses” (Id.) (emphasis added).

The Petitioner would have the Court believe that Kuenneke was so deficient that she not

only failed to notice the potential “look-alike” mismatch after Elion raised that specific issue,

after she wrote an email detailing her findings, after she reviewed the Guideline definition of a

controlled substance offense, after she had requested Elion’s Shepard documents for a

divisibility analysis, and after she met with Elion and discussed her research specifically

concerning the applicability of “look-alike” substance offenses for the career offender

enhancement with him. Then, that Kuenneke proceeded to perjure herself.

It strains credulity.

Furthermore, the Petitioner’s argument is internally inconsistent. The Petitioner does not

dispute that she requested and reviewed Elion’s Shepard documents, but she would have no

reason to request those documents unless she noticed at least one mismatch between the Illinois

statute and the Guidelines. The Petitioner’s argument is a catch-22: either Kuenneke was so

deficient that she compared the statute with the Guidelines, saw no mismatch, and, therefore,

would have no need to request Elion’s Shepard documents; or alternatively, Kuenneke correctly

identified the mismatch (as Kuenneke claims in her testimony), requested the Shepard

documents, and performed an allegedly faulty divisibility analysis (as the Petitioner later claims

for the “advertising” mismatch). Both scenarios cannot be true.

The Petitioner may argue that Kuenneke requesting Elion’s Shepard documents is not

dispositive; that she may have requested those documents in anticipation of a categorical

approach analysis, not because she actually saw those mismatches. Yet, that argument is still

inconsistent; it suggests that Kuenneke is both familiar enough with the categorical approach and

divisibility analysis to know which documents to request, but that she was so ignorant of the

categorical approach that she did not even know how to perform the very first step of that same

analysis.4 Given reviewing Shepard documents is only necessary late in a divisibility analysis (or

when applying the modified categorical approach); no matter how the Petitioner may attempt to

frame it, Kuenneke clearly had some familiarity with the categorical approach.

The Petitioner’s argument is also difficult to square with Kuenneke’s background.

Kuenneke has nearly thirty years of experience, she is a veteran defense attorney, and she was

assigned specifically to habeas petitions in the past—after Mathis was decided. Evid. Hr’g. Tr.,

45:18-25, Mar. 6, 2024 (Doc. 80). It is difficult to believe, given the wealth of experience in

criminal law and specifically with post-Mathis habeas petitions, that Kuenneke would be entirely

unfamiliar with the basic tenets of Mathis or be unaware of how to perform that analysis.

4 The same is true if the Petitioner argues that Kuenneke noticed the “advertising” mismatch and only requested

Elion’s case documents for that reason. In fact, given the Petitioner also argues that Kuenneke failed to notice the

“advertising” mismatch, the Petitioner’s argument would be even more contradictory given the majority of the

Petitioner’s argument is dedicated to discrediting Kuenneke’s purported knowledge of the “advertising” mismatch.

The Petitioner argues that Kuenneke’s testimony is dishonest and should be disregarded.

However, in her initial affidavit, Kuenneke voluntarily, and without prompting, offered her notes

for review in camera. (Doc. 30, Ex. A at 3 n. 1). While the Court did not review those notes, had

the Court reviewed them, it would quickly become apparent whether Kuenneke perjured herself

or not. It would be exceedingly unwise for Kuenneke to perjure herself with full knowledge that

she offered her notes for the Court’s review, in some enormous gambit that the Court would not

review them. If, as the Petitioner alleges, Kuenneke has lied in an “attempt to preserve her

professional reputation,” (Doc. 84 at 13), perjury would be far more damaging to her reputation

than admitting she failed to research a new and highly granular categorical approach argument.

The consequences for perjuring herself—especially in a habeas case—would be dire, and far

more egregious than being found ineffective for not performing the research in the first place.

Guilty people generally do not willingly offer up blatantly incriminating evidence for the Court’s

review, especially not veteran defense attorneys. No one requested to view her notes, she offered

them up unprompted; if she had lied, it would be senseless to take such an enormous, grave, and

unnecessary risk.

For all these reasons, the Court finds that Kuenneke noticed the “counterfeit” and “look-

alike” potential mismatch, that she researched the issue, and that her testimony was truthful and

not inconsistent with her affidavit.

2. Kuenneke did not over-rely on Robertson

The Petitioner makes a variety of claims related to Robertson—the Eighth Circuit case

that found Illinois’s look-alike statute contained an “intent to deceive” element and, therefore,

was a categorical match with the Guidelines. The Petitioner argues that Kuenneke impermissibly

relied on Robertson, because “competent counsel also would have known that one out-of-circuit

case alone is not enough to take a categorical approach argument off the table.” (Doc. 84 at 16).

The Petitioner either misunderstands or mischaracterizes Robertson and Kuenneke’s research.

First, Kuenneke did not rely on Robertson alone, she also relied on Hudson. While

Robertson was an out-of-circuit case, Hudson was not. Hudson is not only mandatory authority

in this Circuit, it favorably cited Robertson—that alone elevates Robertson’s persuasive authority

beyond being merely “one out-of-circuit case.”

Second, while Robertson was not mandatory authority, Hudson was decided using highly

similar reasoning. While Robertson concerned Illinois’s statute and Hudson concerned Indiana’s,

placing the two statutes next to one another reveals that the language is nearly identical.5 This

not only lends further persuasive value to Robertson’s ruling specifically, it also supports a

conclusion, based purely on a reading of Hudson, that the Illinois look-alike statute was a

categorical match with the Guidelines.

Third, the Seventh Circuit noted in its opinion in Hudson that its holding aligns with the

rulings of four other federal appellate courts. The existence of other appellate case law—that

Kuenneke would necessarily be aware of after having read Hudson—may have added more

weight to her conclusion that “look-alike” and “counterfeit” were a categorical match, but they

were not directly relevant to Illinois’s look-alike statute; Robertson, however, was. Hudson was

included in Kuenneke’s affidavit because it was controlling authority; Robertson was included

because it analyzed Illinois’s look-alike statute specifically. Her inclusion of Robertson does not

in any way imply that her conclusion was based solely on Robertson given the existence of other,

5 The language in the Indiana and Illinois statutes are identical, but they differ in organization. Compare IND. CODE

§ 35-48-4-4.5(a) (2010) (repealed 2019) with 720 ILL. COMP. STAT. 570/102(y) (2007). Both states lay out three

definitions for a “look-alike” substance; however, whereas Indiana separates the definition into three separate

subsections (ex. § 4.5(a)(1), (2), (3)), the Illinois folds two of the criteria into one subsection with two prongs (ex.

§102(y)(1)(a), (y)(1)(b), 102(y)(2)).

similar appellate case law. It merely demonstrates that Kuenneke determined Robertson was

particularly relevant to the issue at hand. The Court does not subscribe to the Petitioner’s “four

corners” interpretation of Kuenneke’s affidavit; while Kuenneke did not mention finding

additional authority, that does not mean she did not find them or consider their persuasive value.

Fourth, Kuenneke did not just rely on Robertson and Hudson to come to her conclusions.

Setting aside case law, Kuenneke still performed her own analysis by researching the different

definitions of “counterfeit” and “look-alike.” Based on her research, her own reading and

interpretation of the statute, supportive case law, and the absence of negative case law; Kuenneke

concluded that “counterfeit” and “look-alike” were a categorical match.

Thus, Kuenneke’s conclusion was not supported solely by one “out-of-circuit” case, nor

supported even by multiple “out-of-circuit” cases; it was also supported by her reading of

Hudson and her own interpretation of the statute. While no single factor is dispositive, taken in

totality, it is clear that Kuenneke did not solely or overly rely on Robertson.

3. There is No Error in Robertson

The Petitioner argues that Robertson misquoted Illinois’s look-alike statute. The relevant

part of the Illinois look-alike statute is as follows:

[A] substance, other than a controlled substance which . . . (2) is expressly or

impliedly represented to be a controlled substance or is distributed under

circumstances which would lead a reasonable person to believe that the substance

is a controlled substance.

720 ILL. COMP. STAT. 570/102(y) (2007) (emphasis added). The alleged misquote comes from

the following passage of Robertson:

Facially, it is readily apparent that (y)(1) and (y)(2) each includes the “made-in-

imitation” component of “counterfeit.” Turning to the “intent-to-deceive”

component, the plain language in (y)(2) — “expressly or impliedly represented”

and “distributed under circumstances which would lead a reasonable person to

believe that the substance is a controlled substance” — clearly contains an intent-

to-deceive element.

Robertson at 542 (emphasis added).

The Petitioner argues that in its discussion of Section 102(y)(2), the Eighth Circuit—“by

[linking] prongs in the statutory definition of ‘look-alike substance’ with [the conjunction] ‘and’

rather than [the conjunction] ‘or.’”—erroneously found that it was both the “expressly and

impliedly represented” prong and the “distributed under circumstances” prong of Section

102(y)(2), in combination, that indicated intent; rather than the two prongs separately including

intent. (Doc. 84 at 15) (citing Evid. Hr’g. Tr., 96:1-23, Mar. 6, 2024 (Doc. 80)). According to the

Petitioner, this error materially changes the Robertson holding.

The Petitioner is mistaken.

Firstly, even if there was an error in Robertson, the Petitioner argues that no competent

counsel would have missed this purported error. That is a bold claim given that, in the seventeen

years since Robertson was decided by the Eighth Circuit, the Seventh Circuit and multiple other

courts have read and cited Robertson on multiple occasions and none have noticed this purported

error. While it is certainly possible this error has been missed by all but the Petitioner, it is

paradoxical to argue that an error is so obvious that an attorney would be incompetent for failing

to notice it when it has gone unnoticed by hundreds of attorneys, judges, and jurists in the

seventeen years since it was decided. Given an ineffective assistance of counsel analysis relies

on prevailing professional norms, the argument is especially contradictory and self-defeating.

Secondly, contrary to the Petitioner’s assertions, Robertson neither misread nor misstated

the law. It is difficult to believe that the Eighth Circuit misstated the law two sentences after

directly quoting it. Moreover, the difference between the conjunctions “and” and “or” in a statute

can be incredibly consequential, thus it is even more difficult to believe the Eighth Circuit would

confuse the two. For those reasons alone, the Court finds the Petitioner’s reading of Robertson

unpersuasive. Under further inspection, the Petitioner’s argument continues to unravel.

The two prongs of Section 102(y)(2) contain two verbs describing two separate acts:

“represent[ing]” and “distribut[ing]”; whether those acts, listed in Section 102(y)(2), included an

intent to deceive was not at controversy in Robertson. What was at controversy in Robertson was

whether Section 102(y)(1) included an intent to deceive. Section 102(y)(1), in contrast to Section

102(y)(2), defines a “look-alike” substance, not based on conduct, but based solely on the

substance’s appearance or physical characteristics. The Robertson Court was skeptical that a

substance’s appearance or physical characteristics alone, absent accompanying conduct, included

an element of deception. However, the Robertson Court found, supported by Illinois law, that

there was an intent-to-deceive element in Section 102(y)(1). The Hudson Court came to a similar

conclusion for Indiana’s law using similar reasoning. Obviously, “representing” or “distributing”

as conduct, inherently involves a higher level of intentional deception than merely possessing a

substance that appears to be a controlled substance. It would be nonsensical to find that

possessing a substance that merely looks like a controlled substance demonstrates an intent to

deceive; but actively representing that substance as a controlled substance, or alternatively,

distributing the substance the same way a controlled substance would be distributed, fails to

demonstrate that same intent.

For all these reasons, it seems unlikely that the Robertson Court, by using the conjunction

“and” when explaining Section 102(y)(2), meant that it is the combined prongs of 102(y)(2) that

form intent. Instead, it seems far more likely that the Robertson Court used the conjunction

“and” to indicate that the two prongs of 102(y)(2) both share the same characteristic: an intent to

deceive. Consequently, the Petitioner’s interpretations of Robertson and Section 102(y)(2)

are incorrect; there is no error in Robertson.

There is another matter the Court is obliged to address. The Petitioner’s memorandum

repeated the erroneous claim that Robertson misinterpreted the statute and faulted Kuenneke for

failing to read Robertson closely enough to identify this “obvious” error. (Doc. 84 at 15). On

cross-examination, the Petitioner asked Kuenneke if she was aware that the Seventh Circuit, in

remanding this case, noted Robertson’s “misquotation” in their opinion:

Q. You said you are familiar with the Seventh Circuit's decision [remanding] this

case?

A. Yes.

Q. Is that right? And you have read that decision?

A. I have.

Q. You are aware that the Seventh Circuit in this case pointed out that the Eighth

Circuit had misquoted Robertson?

A. I don’t recall. I’m not saying it’s not there; I just don’t recall.

Evid. Hr’g. Tr., 21:24-22:10, Mar. 6, 2024 (Doc. 80).

This is simply false.

The Seventh Circuit only briefly mentions Robertson. At no point did the Seventh Circuit

write or even imply that the Eighth Circuit had misquoted or misinterpreted the Illinois statute.

See Elion at 628, Slip Op. at 11.

B. “Advertise” Mismatch

The “advertising” mismatch was not explicitly mentioned in Kuenneke’s affidavit. The

Petitioner argues that Kuenneke’s affidavit “makes clear that she misunderstood the law” by not

performing the categorical approach correctly. In her affidavit, Kuenneke wrote that she thought

Elion may have had a Mathis argument for his 2000 conviction, but, after reviewing his 1999

conviction, concluded that performing a Mathis analysis on his 2000 conviction was

unnecessary. The Petitioner argues that it is nonsensical to say Elion had a Mathis argument for

his 2000 conviction but not for his 1999 conviction given both convictions were under the same

underlying statute. The only logical explanation for Kuenneke’s statement, the Petitioner alleges,

is that Kuenneke analyzed the wrong statute; the Petitioner claims that Kuenneke performed a

Mathis analysis on Section 407—the penalty statute—not Section 404—the underlying statute,

and that is the source of this discrepancy. Kuenneke testifies otherwise, attributing the

inconsistency to an error on her part in writing the affidavit. As before, the Petitioner disputes

her honesty and, here too, the Petitioner is incorrect.

1. It Would Have Been Infeasible for Kuenneke to Perform a Mathis

Analysis on the Penalty Statute

A Mathis analysis requires evaluating the elements of an offense. As an enhancement

statute, Section 407(b)(3) does not set out unique offenses; it only provides enhanced penalties

for offenses under other statutes based on proximity to certain locations.6 Because Section

407(b)(3) does not list unique offenses, and a Mathis analysis requires an offense with elements

to analyze; it would be infeasible for Kuenneke to perform a Mathis analysis on Section

407(b)(3) even if she wished to.

The only way the Petitioner’s argument works is if Kuenneke looked at Section

407(b)(3), saw there were a variety of enhancements, erroneously concluded on that basis alone

that Section 407 was divisible, jumped straight to Elion’s Shepard documents, applied the

modified categorical approach, and—given “delivery” appears nowhere in the statute or the

6 While 720 ILCS 570/407(a) does list elements of an offense, is also an enhancement for Section 404(b), and

includes some individualized elements; Section 407(b)(3) however, does not. The Petitioner correctly points out that

the Government’s initial response brief conflated Section 407(a) and Section 407(b), but that was an error on the

Government’s part and does not necessarily reflect Kuenneke’s knowledge, understanding, or reasoning.

Guidelines—concluded solely on her intuition that “delivery” was a categorical match with

“distribute.” Such an approach is not only infeasible, it defies logic.

The very first sentence of Section 407(b)(3) integrates Section 404(b) by reference:

“[a]ny person who violates . . . subsection (e) of Section 401 or Subsection (b) of Section 404.”

Section 407(b)(3). Kuenneke explicitly identifies this in her affidavit: “Affiant determined that

Mr. Elion was charged pursuant to [Section] 407(b)(3), which states that anyone who violates . . .

[Section] 404(b) within 1000 feet of public housing is guilty of a Class 2 felony.” (Doc. 13, Ex.

A at 6) (emphasis added). Even presuming arguendo that Kuenneke sought to interpret Elion’s

1999 conviction as a discrete offense under Section 407(b)(3), there would only be two

“elements” to that fictitious discrete offense: proximity to public housing, and a violation of

Section 404(b). The Guidelines do not provide proximity restrictions—meaning that “element”

would be narrower than the Guidelines; that leaves only one “element” left to analyze: a

violation of Section 404(b). Thus, even if Kuenneke erroneously believed that Section 407 was

divisible, she would necessarily need to determine whether a violation of Section 404(b) is a

match with the Guidelines as part of that analysis—which would require applying the categorical

approach to Section 404(b). Put in simpler terms, even attempting an erroneous Mathis analysis

on Section 407(b)(3) necessarily requires performing a Mathis analysis on Section 404(b).

Therefore, even if Kuenneke put the cart before the horse and jumped straight to the

divisibility analysis, even if she treated Elion’s Section 407(b)(3) conviction as a fictitious

discrete offense, she would still need to evaluate Section 404(b) as an “element” of a Section

407(b)(3) violation.

2. Petitioner Makes Two Contradictory Arguments: That Kuenneke Both

Performed the Mathis Analysis on the Incorrect Statute and That She

Came to a Flawed Conclusion for the Divisibility Analysis

In Subsection d of Kuenneke’s affidavit, Kuenneke described part of her process for

evaluating Elion’s 1999 conviction. She writes: “Affiant determined that delivery of a controlled

substance fell under the definition of distribution or dispensing.” (Doc. 13, Ex. A at 6) (emphasis

added). Then, in analyzing Elion’s 2000 conviction, Kuenneke explicitly mentions Hinkle. Id. at

5 (“Affiant also reviewed United States v. Hinkle, 882 F.3d 569 (5th Cir. 2016)”). While this part

of the affidavit concerns Elion’s 2000 conviction, her earlier mention of Hinkle, combined with

Subsection d of her affidavit indicating she determined “delivery” and “distribute” were

interchangeable, is further evidence that she analyzed the correct statute. Neither “delivery” nor

“distribute” appear in Section 407(b)(3). Kuenneke would simply have no reason to search for or

include Hinkle in her affidavit, nor any reason to even investigate whether “delivery” and

“distribute” were interchangeable—unless she analyzed Section 404(b).

The Petitioner argues, because Hinkle was decided outside of the Seventh Circuit and did

not concern “advertising” a controlled substance, that Kuenneke’s mention of Hinkle further

illustrates her lack of research and understanding. The Petitioner fails to understand Hinkle’s

relevance. Hinkle does not address the “advertising” issue; but it is precisely because Hinkle

does not address “advertising” that this fact weighs in Kuenneke’s favor.

Kuenneke would only have performed a search that returned Hinkle and included it in her

affidavit if she believed it was relevant to Elion’s claims—which concerned whether the term

“advertising” in the Illinois statute made his convictions invalid predicates for the enhancement.

Hinkle, however, evaluated whether Texas’s “delivery” statute fit within the Guidelines. Again,

the term “delivery” appears neither in Section 404(b) nor 407(b)(3). If the term “delivery” does

not appear in either of those statutes, it begs the question what possible relevance Hinkle could

have, what possible reason Kuenneke would have for searching and including a case that chiefly

concerned “delivery,” and where she even got the term “delivery” from.

While “delivery” does not appear in the statutes, it does appear in Elion’s Shepard

documents. The only logical conclusion is that Kuenneke pulled the term “delivery” from Elion’s

Shepard documents. Yet, that begs the next question; which is why Kuenneke was analyzing

Elion’s Shepard documents at all. The only time Shepard documents are relevant is during a

divisibility analysis or when using the modified categorical approach (which can only be

performed after a divisibility analysis). Either way, if Kuenneke was looking at Elion’s Shepard

documents, she necessarily must have performed a divisibility analysis at some point. However,

Kuenneke would only have performed a divisibility analysis if she noticed that Elion’s statute of

conviction was not a categorical match with the Guidelines. If Kuenneke had determined that the

statute was a categorical match, there would be no need for a divisibility analysis, no need to

inspect Elion’s Shepard documents, no need to research whether “delivery” and “distribute” are

interchangeable, and no need to search for Hinkle nor include it in her affidavit. In short, by

reverse engineering Kuenneke’s inclusion of Hinkle, the Court can reconstruct the steps she took

in her analysis. That reconstruction reveals that, not only did Kuenneke notice a mismatch, she

performed a divisibility analysis, and got to the point of that analysis where she analyzed Elion’s

Shepard documents.

The Petitioner alleges that Kuenneke noticed neither the “advertising” mismatch nor the

“counterfeit” mismatch; however, those are the only two mismatches between Section 404(b)

and the Guidelines. Yet, as explained above, it is evident that Kuenneke performed a divisibility

analysis. Thus, the Petitioner finds himself in another catch-22: either Kuenneke noticed the

“advertising” mismatch and performed the divisibility analysis that led her to “delivery,” and, in

turn, to Hinkle; or alternatively, she noticed the “counterfeit” mismatch and reached Hinkle that

way. There are a few possibilities, but all involve Kuenneke noticing a mismatch somewhere in

Section 404(b), performing a divisibility analysis, noticing a mismatch between his Shepard

documents and the Illinois statute, finding an analogous out-of-circuit case, and analyzing that

case to a sufficient degree that she found it was not applicable. The Petitioner cannot claim

Kuenneke did not notice either of the two lone mismatches between Section 404(b) and the

Guidelines, and square that with Kuenneke’s review of Elion’s Shepard documents. Moreover, it

cuts against the Petitioner’s argument that Kuenneke did not know how to properly perform a

Mathis or divisibility analysis. Kuenneke must have had some familiarity with the law and

procedures. Furthermore, it is difficult to believe that Kuenneke was vigilant enough to notice

and investigate a potential mismatch between Elion’s Shepard documents and go through the

process that would lead her to Hinkle, if, as the Petitioner contends, Kuenneke was oblivious to

the fact she was analyzing the wrong statute.

The Petitioner may argue that Kuenneke finding and mentioning Hinkle had nothing to

do with a divisibility analysis; rather, that Hinkle shows that Kuenneke erroneously jumped

straight to the modified categorical approach to evaluate whether Elion’s discrete offense of

“delivery” falls within the Guidelines—without first performing the divisibility analysis. There

are a few problems with that theory.

For one, it would suggest Kuenneke knew how to perform the modified categorical

approach by comparing discrete offenses to the Guidelines, but that she was incapable of

performing the step that always precedes the modified categorical approach: the divisibility

analysis. Once again, the Petitioner finds himself in a bind; that argument would suffer from the

same paradox of alleged oscillating competency that plagues the Petitioner’s other arguments:

Kuenneke was both competent enough to find and read multiple cases demonstrating exactly

how to perform the analysis, compare the statutes, and relevant case law; but was allegedly so

woefully misinformed that she engaged in a course of impressive mental gymnastics to avoid the

obvious and simplest conclusion—that a Mathis analysis must be performed on Section 404(b).

Put simply, the Petitioner argues that Kuenneke compared multiple definitions, researched case

law, reviewed Elion’s Shepard documents, applied the modified categorical approach; then

found, read, and analyzed Hinkle; but she did not realize at any point of that research or analysis

that Section 404(b) was the appropriate statute to analyze. That seems improbable.

When evaluating competing theories, weighing the evidence, the simplest explanation is

often the correct one. The Petitioner argues that Kuenneke, a seasoned defense attorney with

decades of trial and habeas experience, was woefully incompetent yet, somehow, made wrong

decisions at every single turn, exhibiting an inexplicable aversion to analyzing Section 404(b),

but yet still noticed mismatches between Elion’s Shepard documents and the statute, found an

out-of-circuit case, and analyzed that case enough to determine it was not relevant. Between the

Petitioner’s proposed convoluted explanation, and the simple explanation of an error in writing

her affidavit; the Court finds that a scrivener’s error is the most likely explanation.

3. Analysis of Elion’s 2000 Conviction was Unnecessary and Does Not

Indicate Kuenneke Failed to Properly Perform the Categorical Approach

Kuenneke wrote the following in her affidavit:

Affiant determined that argument on the 2000 conviction was unnecessary, as the

1999 and 2006, felony convictions were qualifying convictions for application of

the career offender enhancement.

(Doc. 13, Ex. A at 5) (emphasis added). Kuenneke concluded that Elion’s 2000

conviction did not require further research based on her review of the 1999 conviction.

Kuenneke described her analysis of Elion’s 1999 conviction as follows:

Affiant reviewed the Indictment and Amended Judgment in the 1999 Illinois state

conviction and determined that Mr. Elion was charged with, and pled guilty to, to

one count of Unlawful Delivery of a Look-Alike Substance within 1,000 Feet of

Public Housing Property pursuant to 720 ILCS 570/407(b)(3). Affiant determined

that this conviction qualified as a predicate conviction for the application of the

career offender statute based on the following:

a. Pursuant to U.S.S.G. § 4B1.2(b), controlled substance violations may

be state or federal convictions, and may include counterfeit substances

that are dispensed or distributed.

b. Affiant determined that Mr. Elion was charged pursuant to 720 ILCS

570/407(b)(3) . . . which states that anyone who violated 570/401(e) or

570/404(b) within 1000 feet of public housing is guilty of a Class 2

felony.

c. Chapter 720 ILCS 570/407 sets out multiple crimes with multiple

elements, felony classifications and fine ranges and is a divisible statute.

Therefore, 720 ILCS 570/407(b)(3) was subject to review pursuant to

the modified categorical approach. See Mathis, 136 S. Ct. at 2256 (“If

statutory alternatives carry different punishments, then . . . they must be

elements.”). See Attachment 1 (Statute) [(Text of Section 407(b)(3))].

d. A divisible statute allows review of limited case documentation.

Shepard v. United States, 554 U.S. 26 (2005). Pursuant to Shepard,

Affiant reviewed the Bill of Indictment. The Bill of Indictment stated

that Mr. Elion knowingly and unlawfully delivered a look-alike

substance to a confidential source within 1000 feet of public housing.

Affiant determined that delivery of a controlled substance fell under the

definition of distribution or dispensing.

(Doc. 13, Ex. A at 5-6) (emphasis added).

The Petitioner argues that these two sections of Kuenneke’s affidavit, when read

together, support the conclusion that Kuenneke performed a Mathis analysis on the

wrong statute. According to the Petitioner, if Kuenneke thought there may have been a

Mathis argument for the 2000 conviction, and both convictions were under the same

underlying statute, it would be illogical for Kuenneke to write that there was a possible

Mathis argument for one conviction but not the other. The Petitioner suggests that the

only explanation for Kuenneke thinking that analysis of Elion’s 2000 conviction was

unnecessary based on an analysis of his 1999 conviction, is that Kuenneke analyzed the

wrong statute.

The Petitioner is incorrect.

First, aside from concluding that an underlying statute is divisible, there are other

reasons why concluding that there is no Mathis argument for Elion’s 1999 conviction

does not necessarily preclude a Mathis argument for his 2000 conviction.

To determine that Elion’s 1999 conviction was a valid predicate, Kuenneke had to

compare his Shepard documents from 1999 to the Guideline definition. Elion’s 2000

conviction could have been beyond the scope of the Guidelines while his 1999 conviction

was not. The two convictions do not necessarily “rise or fall together,” as the Petitioner

asserts, (Doc. 84 at 12), they can easily be two different discrete offenses. While it may

be an unlikely outcome, to be certain that there was no Mathis argument for his 2000

conviction after concluding there was no Mathis argument for his 1999 conviction,

Kuenneke would need to perform a modified categorical approach analysis using Elion’s

Shepard documents from his 2000 conviction. She may have intuited that the conclusion

would be the same for both convictions, but she could not know for certain unless she

went through with the analysis.

Second, as Kuenneke explained in her testimony, both convictions were under the

same statute. Having already done a Mathis analysis on Section 404(b), it would be

redundant to perform that same analysis on the same statute:

Q. It says in the last sentence of this paragraph with Romanette ii, you say:

“However, affiant determined that argument on the 2000 prior conviction was

unnecessary as the 1999 and 2006 felony drug convictions were qualifying

convictions for application of the career offender enhancement.” Did I read that

correctly?

A. Yes.

Q. So under this logic the 1999 conviction would have had to have been different

than the 2000 conviction; right?

A. No.

Q. Well, you say here you determined that argument on the 2000 conviction was

unnecessary because the 1999 and 2006 convictions were themselves qualifying

convictions; right? Is that what that says?

A. Yes.

Q. When you looked at 2000, you thought there may have been a Mathis argument;

right?

A. Yes, but my notes reflect that when I did the 404(b) analysis on the 1999

[conviction], that it was the same statute as the 2000 [conviction]. My notation

is that they are the same statute, so it was the same analysis.

Q. I understand.

Evid. Hr’g. Tr., 59:19-60:17, Mar. 6, 2024 (Doc. 80). Regardless, even if Elion’s 2000

conviction hypothetically was an invalid predicate for the career offender enhancement,

Kuenneke had already determined that Elion had two prior drug convictions (one from

1999 and another from 2006). Thus, no matter the outcome of an analysis of his 2000

conviction, Elion had two valid predicates for the career offender enhancement.

In short, analyzing Elion’s 2000 conviction after determining that Section 404(b)

was divisible and that his 1999 conviction qualified, would be pointless; the outcome of

that analysis would have had no impact on Elion’s career offender status one way or the

other. Kuenneke coming to that logical conclusion does not demonstrate that she

analyzed the wrong statute.

4. Kuenneke’s Testimony was Truthful and Credible

Whether Kuenneke’s allegedly erroneous analysis was the result of honest mistake,

confusion, or lack of knowledge; the Petitioner believes that Kuenneke’s misunderstood the law

by performing a Mathis analysis on Section 407(b)(3) and that any testimony she gave otherwise

was dishonest. The Petitioner points to Subsection c of Kuenneke’s affidavit:

Chapter 720 ILCS 570/407 sets out multiple crimes with multiple elements, felony

classifications and fine ranges and is a divisible statute. Therefore, 720 ILCS

570/407(b)(3) was subject to review pursuant to the modified categorical approach.

See Mathis, 136 S. Ct. at 2256 (“If statutory alternatives carry different

punishments, then . . . they must be elements.”). See Attachment 1 (Statute)

[407(b)(3)].

(Doc. 13, Ex. A at 6) (emphasis added). Kuenneke attached Section 407 to her affidavit and

referenced it in Subsection c. Additionally, in Subsection d of her affidavit, Kuenneke refers

specifically to the offense of unlawful delivery to someone within 1,000 feet of public housing—

again a reference to Section 407(b)(3), not Section 404(b). Section 407 is not divisible because it

is a penalty statute, and penalty statutes are not reviewable under Mathis. If Kuenneke did

attempt to perform a Mathis analysis on Section 407, that would certainly demonstrate a

misunderstanding of the law.

When questioned, Kuenneke testified that Subsection c of her affidavit was written in

error and that it was a mistake on her part. She claimed that her affidavit did not match her notes.

She could not explain what caused the error. If Subsection c was truly written in error, then that

error extended to attaching the enhancement statute to the affidavit and referencing it in the

Mathis analysis.

The Petitioner was understandably incredulous. The Petitioner pointed out that Kuenneke

reviewed and signed the affidavit, with the benefit of her notes, and with the case much fresher

in her mind. Her “new story” has not only been provided “seven years after Elion was

sentenced,” the Petitioner argues, but she also “contradict[s] her prior, sworn representations.”

(Doc. 84 at 12). The Petitioner believes Kuenneke’s testimony is “self-serving,” and that

disavowing Subsection c of her affidavit is an “attempt to preserve her professional reputation.”

(Doc. 84 at 13). The Petitioner invoked the sham affidavit doctrine again and cited Stewart v.

Rise, Inc., 791 F.3d 849, 861 (8th Cir. 2015), which states that when a declarant’s testimony

clearly contradicts their past testimony and offers no explanation for the inconsistencies, then

their new testimony should be disregarded.

Whereas in other places Kuenneke’s testimony expands on and clarifies her affidavit,

here, none can argue that her testimony directly contradicts her affidavit. Kuenneke claims this

was an error in writing, not a misunderstanding; the Petitioner claims that is a lie, but regardless,

the sham affidavit doctrine requires that the Court dismiss Kuenneke’s testimony. The Petitioner

is correct that, under the sham affidavit doctrine, when subsequent testimony clearly conflicts

with a previous affidavit without explanation, courts disregard the subsequent testimony.

However, Kuenneke did provide an explanation: she made an error; if that explanation is true,

then the sham affidavit doctrine is inapplicable here. This is fundamentally an issue

of credibility.

The Petitioner is justifiably skeptical of Kuenneke’s explanation; indeed, the Court is

skeptical as well, and all should be; a witness should not be allowed to cure contradictory

testimony by merely claiming they made an unspecified “error,” especially when that error is to

their benefit, and when no explanation is provided. While any attempts to recant her affidavit

should be viewed dubiously, other parts of her affidavit—even parts of the erroneous section of

her affidavit and the citation to Hinkle—seem to corroborate her claim.

If it was Kuenneke’s word alone versus her affidavit, the analysis would be more

complicated. However, when a perceivable error in just a few sentences of a prior declaration

would render a large portion of the declaration nonsensical, and then the witness later gives

testimony that there was an error, and the correction makes the declaration internally consistent;

that seems to weigh heavily in favor of the conclusion that the declarant is telling the truth about

their error, not attempting to “patch up” their earlier statements.

The Petitioner suggested on cross-examination that Kuenneke would rather lie to protect

her reputation than admit to her mistake. Evid. Hr’g. Tr. 66:3-67:10, Mar. 6, 2024 (Doc. 80).

Setting aside the decades Kuenneke has practiced before this Court that would suggest she would

not perjure herself—especially not to keep one of her former clients in prison—as an

experienced defense attorney, Kuenneke knows better than most that contradicting her affidavit

would draw exacting scrutiny from both opposing counsel and the Court.

Yet, even presuming arguendo that Kuenneke is willing to lie to the Court, it begs the

question why she chose to tell a lie that would subject her to such great scrutiny. As an

experienced defense attorney who has a wealth of experience with habeas petitions for

ineffective assistance of counsel, she knows the legal standard; she knows that she can provide

testimony that would inoculate her against these claims—such as having some fictious “strategic

reason” for not objecting—and it would be far more difficult to prove she was being dishonest.

However, if she did lie, she chose to lie about performing research, analyses, and taking

extensive notes—all claims that, not only subject her to greater scrutiny, but can be easily

disproved if the Court reviewed her notes in camera, as she offered. There are many lies that

would draw far less scrutiny and be far more advantageous; if Kuenneke chose to lie, she

selected a lie that would be the least advantageous and draw the highest level of doubt. Perhaps a

lay witness would tell a lie that would subject them to greater scrutiny, but it is difficult to

believe that a defense attorney as seasoned and knowledgeable as Kuenneke—if she was

determined to lie, with as much time to prepare for this hearing as she did—would tell a lie so

easily disprovable, with the potential for such disastrous consequences. In short, the Petitioner’s

argument would require the Court find that Kuenneke was not only incompetent and dishonest,

but it would also require the Court find that Kuenneke would risk her career and reputation by

perjuring herself with an easily disprovable lie, knowing she offered the Court her notes—

evidence of her perjury. That seems very far-fetched.

In a similar vein, the Petitioner asked Kuenneke whether she was aware that the Seventh

Circuit in this case had found that, in Robertson, the Eighth Circuit had misquoted the statute.

Kuenneke testified that she was unaware of any part of the opinion in this case that indicated

Robertson had misquoted the statute. As discussed before, the Petitioner was factually incorrect;

however, Kuenneke had no reason to doubt the factual basis of the Petitioner’s question. If

Kuenneke had resolved to lie about her research and preparedness to preserve her professional

reputation, it is odd that Kuenneke would confirm that she read the opinion, but not lie or at least

imply anything about seeing a portion of the opinion addressing Robertson’s purported error.

Were the Court to find that Kuenneke’s testimony is credible, there is the outstanding

question of how such an error happened. There are several ways that such an error may have

occurred that would not only explain the inconsistency, but also cure the remainder of the

affidavit. A scrivener’s error, though highly charitable, on the spectrum of possibilities seems far

more likely than Kuenneke’s woeful incompetence, ignorance, and fabricated testimony. While

the Petitioner faults Kuenneke for not providing an explanation for the error at the hearing—it

would be inappropriate for Kuenneke to speculate, under oath, on the cause or reason for an error

that occurred over seven years ago.

In sum, though clearly contradictory testimony without explanation should be

disregarded, Kuenneke did provide an explanation. While that explanation draws the Court’s

scrutiny, all the evidence—including other aspects of the affidavit—when taken as a whole,

point to the conclusion that Kuenneke’s testimony was truthful.

C. Summary of Factual Findings

The Petitioner argues that Kuenneke misidentified the applicable statute, applied the

categorical approach to the wrong statute, failed to notice potential mismatches, failed to perform

a proper divisibility analysis, impermissibly relied on faulty, out-of-circuit case law, did not

comprehend the basic tenets of Mathis, and then proceeded to risk her career and livelihood by

not only perjuring herself, but offering up evidence of that perjury of her own volition for the

Court’s review.

The Court finds that Kuenneke identified Section 404(b) as the applicable statute, that she

applied the categorical approach properly to that statute, that she noticed both potential

mismatches, researched both mismatches, did not rely on one, faulty, out-of-circuit case to come

to her conclusion, was familiar with the tenets of Mathis, properly performed the divisibility

analysis, researched relevant issues as part of that analysis, and then applied the modified

categorical approach. Furthermore, the Court finds that Subsection c of her affidavit was written

in error and that Kuenneke’s testimony was truthful and credible.

Now that the factual disputes have been resolved, the Court can evaluate Kuenneke’s

performance.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Legal Standard

The Sixth Amendment to the United States Constitution provides that defendants are

entitled to effective assistance of counsel. U.S. CONST. amend. VI. McMann v. Richardson, 397

U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). Convicts may

move to have their sentence corrected, adjusted, or vacated by filing a habeas petition pursuant to

28 U.S.C. § 2255(a). The Court must grant a § 2255 petition when a petitioner’s “sentence was

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

including when a defendant received ineffective assistance of counsel at sentencing.

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

counsel’s performance—considering the totality of the circumstances—fell below objective,

professional standards for reasonably effective representation (“deficiency prong”); and (2) but

for that deficient performance, there is a reasonable probability—that is, a probability sufficient

to undermine confidence in the outcome—that the proceeding would have been different

(“prejudice prong”). Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Groves v. United

States, 755 F.3d 588, 591 (7th Cir. 2014). Wyatt v. United States, 574 F.3d 455, 458 (7th Cir.

2009). Harrington v. Richter, 562 U.S. 86, 104 (2011); United States v. Jones, 635 F.3d 909, 915

(7th Cir. 2011). If either prong is not satisfied, then counsel was not ineffective.

In the sentencing context, the court asks whether it was reasonably probable that

defendant would have received a different sentence but for counsel’s acts or omissions.

1. Deficiency Prong

To satisfy the deficiency prong, a defendant must show that—when measured against

prevailing professional norms, considering all the circumstances and counsel’s perspective at the

time—their attorney “made errors so serious that counsel was not functioning as the counsel

guaranteed [to them] by the Sixth Amendment.” Bridges, 991 F.3d at 803. Harris v. Cotton, 365

F.3d 552, 555 (7th Cir. 2004). Strickland v. Washington, 466 U.S. at 689.

Generally, an attorney that conformed with “best practice[s] or the most common

custom[s]” has provided objectively reasonable representation. Harrington v. Richter, 562 U.S.

86, 105 (2011). However, when the attorney becomes aware of “a clear avenue of relief for

[their] client,” Bridges at 806 (internal quotations omitted) (emphasis added), “following the

crowd . . . is no excuse”; an attorney has a duty to research and pursue that objection regardless

of norms, practices, customs, or whether other attorneys are making or pursuing that objection.

Jones v. Zatecky, 917 F.3d 578, 580 (7th Cir. 2019)

When evaluating counsel’s performance, “[j]udicial scrutiny . . . must be highly

deferential.” Strickland at 689. Accordingly, when an attorney makes a reasonable investigation

and, through informed professional judgment,7 concludes that raising a meritorious argument

would not be in the best interests of their client; those decisions are “virtually unchallengeable.”

Strickland at 690. Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012) (“[t]o avoid the

inevitable temptation to evaluate a lawyer’s performance through the distorting lens of hindsight,

Strickland establishes a deferential presumption that strategic judgments made by defense

counsel are reasonable.”). Excluding “egregious” errors—i.e., “an omission of something

obviously better (in light of what was known at the time) than the line of defense that counsel

pursued,” Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir. 2009) (emphasis added)—when an

attorney conducts an adequate investigation and comes to a reasonable determination that a

challenge is meritless, that attorney is not deficient for refusing to raise the argument, even if that

attorney’s conclusion is later shown to be incorrect. Id. (“the question is not whether [a] lawyer’s

work was error-free, or the best possible approach, or even an average one but whether the

defendant had the ‘counsel’ of which the [S]ixth [A]mendment speaks.”) (emphasis added). See

Harris v. United States, 13 F.4th 623, 630 (7th Cir. 2021) (finding that, even in situations where

7 The term “reasonably informed professional judgment” here is used to describe a reasonable legal conclusion made

by an attorney after conducting sufficient investigation into the issue or issues involved. See Bridges v. United

States, 991 F.3d 793, 803 (7th Cir. 2021).

counsel’s erroneous decision is not strategic, Strickland requires a court to conduct a “highly

deferential” inquiry into the objective reasonableness of the representation).

However, while an attorney is not necessarily ineffective for making a mistake of law; an

attorney’s “mistake of law is deficient performance” when they forgo a meritorious challenge,

despite “there [being] no conceivable strategic reason” to do so. Cates v. U.S., 882 F.3d 731, 737

(7th Cir. 2018).8 But again, the error must have been “both obvious and clear under current

law,” Id. (emphasis added), “so obvious and so prejudicial” in fact, “that a district judge should

have intervened without being prompted by an objection.” United States v. Ramirez, 783 F.3d

687, 695 (7th Cir. 2015) (emphasis added).

Forgoing a meritorious argument due to “ignorance [on] a point of law that is

fundamental to [an attorney’s] case[,] combined with . . . failure to perform basic research on that

point [of law],” is a “quintessential example of unreasonable performance.” Hinton v. Alabama,

571 U.S. 263, 274 (2014) (emphasis added). In cases “where the law is unsettled, a matter of first

impression will generally preclude a finding of plain error,” Ramirez at 695, especially when

“the challenge would have required counsel to [ask] the court to break new legal ground,” Harris

v. United States, 13 F.4th 623, 630 (7th Cir. 2021) (quoting Bridges, 991 F.3d at 808) (internal

quotations omitted), and raising said challenge would detract from arguments that were more

likely to succeed in reducing a defendant’s sentence. Id. at 631 (citing Harris v. United States,

366 F.3d 593, 596 (7th Cir. 2004)).

When an attorney has made a reasonable, informed, professional judgment that an

objection lacks merit; despite being bound to act in their client’s best interests—which includes

8 This standard comports with the finding that an “egregious” error may be sufficient to find ineffective assistance of

counsel. See Williams v. Lemmon 557 F.3d at 538.

making arguments that the attorney believes may be unsuccessful—that attorney has an ethical

duty not to raise the meritless objection. That ethical duty extends to criminal defense attorneys:

Criminal defense lawyers, like other lawyers, do not have an ethical duty to make

groundless arguments; indeed, they have an ethical duty not to make such

arguments. The refusal to act unethically by making a groundless argument can

never be a ground for arguing ineffective assistance of counsel.

United States v. Evans, 92 F.3d 540, 544 (7th Cir. 1996). Polk County v. Dodson, 454 U.S. 312,

323 (1981) (“[A] defense attorney has a duty to advance all colorable claims and defenses, [but]

the canons of professional ethics impose limits . . . . It is the obligation of any lawyer—whether

privately retained or publicly appointed—not to clog the courts with frivolous motions.”). See

Smith v. Robbins, 528 U.S. 259, 272 (2000) (finding neither private nor appointed counsel have

the right or duty to raise frivolous appeals).

2. Bridges v. United States

The Seventh Circuit indicated that Bridges v. United States would be instructive here. In

Bridges, the defendant was sentenced as a career offender based, in part, on a Hobbs Act robbery

conviction. See 18 U.S.C. § 1951. The Seventh Circuit had not ruled on whether a Hobbs Act

robbery conviction was a crime of violence for career offender status. Bridges’s attorney did not

object to the enhancement and, as a result, Bridges was sentenced as a career offender. Bridges

filed a § 2255 petition arguing that Hobbs Act robbery was not a crime of violence, therefore, he

was incorrectly sentence as a career offender and his attorney was ineffective for not raising the

objection at sentencing. The district court found that Bridges’s defense attorney was not

ineffective because there was no binding precedent on the specific question of whether a Hobbs

Act robbery was a crime of violence within the Seventh Circuit at the time of his sentencing;

attorneys are not deficient for failing to predict changes in law.

Reversing and remanding,9 the Court of Appeals found that Hobbs Act robbery was not a

crime of violence and wrote that while they “had not so ruled when Bridges pleaded guilty”:

[T]he building blocks for a successful legal argument were already in place.

Effective counsel would have considered this question that was so important in this

case. At that time, minimal research would have uncovered a Tenth Circuit decision

squarely holding that Hobbs Act robbery was no longer a crime of violence under

a 2016 amendment to the guideline definition.

Bridges v. United States, 991 F.3d at 797–98 (emphasis added). While defense attorneys are not

ineffective for merely failing to predict changes in the law, the defense that “[t]here was no

binding [Seventh Circuit] precedent on this exact issue” is insufficient when:

[C]ase law sufficiently foreshadowed this argument, which had been brought to the

forefront by both a recent amendment to the Guidelines and several court of appeals

decisions interpreting [that amendment].

Id. at 804 (emphasis added). “Reasonable counsel would investigate such a new and timely issue,

known to benefit criminal defendants, especially considering the dramatic effect on the guideline

range.” Id. at 805.

An attorney who is unfamiliar or ignorant of the fundamental issues and laws involved in

their case and fails to perform basic research—especially when a simple computer search would

have yielded a plethora of persuasive authority, all cutting in the same direction—is a

“quintessential example of unreasonable performance.” Id. at 803-04. The depth of research

required was minimal and given “modern methods of legal research, it would not have taken

long,” Id. at 805, to find case law squarely addressing the issue—case law that was universally

favorable for Bridges: “every federal appellate court to address the issue squarely has concluded

9 On remand, the Government and Bridges entered into a joint stipulation that his attorney provided ineffective

assistance of counsel and the district court granted that motion without a written opinion on the merits. Bridges v.

United States, No. 1:19-cv-00550-TWP-DLP, (Doc. 43) (S.D. Ind. Jun. 4, 2021).

that Hobbs Act robbery does not fall within the narrow definition of ‘crime of violence’ in [the

Guidelines].” Id. at 800 (emphasis added).

While the fact that no attorneys within the Seventh Circuit were making this argument at

the time “may carry some weight,” courts do not “view [that] as conclusive.” Id. at 806.

Ultimately, “a lawyer’s fail[ure] to take advantage of a clear avenue of relief for [their] client is

no less concerning because many others made the same error.” Id. at 806 (internal quotations

omitted) (emphasis added). Setting aside research, when the career guideline “dramatically

increased the advisory sentence,” that issue deserved more attention, even in the absence of case

law. Id. at 806 (citing United States v. Winstead, 890 F.3d 1082, 1090 (D.C. Cir. 2018)).

At the time of Bridges’s sentencing, the categorical approach was “well-established”;

understanding it and making Guideline arguments are “core competencies of federal defense

counsel.” Id. at 804. Even if Bridges’s attorney was unfamiliar with the recent, significant

changes in law; he could have reached the same conclusion, independently, had he performed a

categorical approach analysis. “[T]he categorical approach is a well-known tool in applying the

Guidelines, and as categorical approach cases go, [the] analysis [here] is straightforward.” Id. at

803. (emphasis added). Had Bridges’s attorney compared the statute with the Guidelines—i.e.,

had he even started a categorical approach analysis—he would have recognized that “Hobbs Act

robbery is not a categorical match for generic robbery” after the Guideline amendments. Id. at

801. “[F]ailure to compare statutory definitions in resolving a guideline question during plea

negotiations would, if proven, constitute deficient performance.” Id. at 805. At a bare minimum

“counsel has a duty to make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.” Id. at 803. Ultimately, Bridges’s attorney “should

have been on the lookout for categorical approach problems given the recent [Guideline

amendment], the dramatic impact of this factor on [Bridges’s] guideline range, and cases around

the country where counsel did recognize and raise these arguments.” Id. at 803.

While the Court of Appeals again emphasized that “[j]udicial scrutiny of counsel’s

performance must be highly deferential, as Strickland and its countless progeny have made

clear,” Id. at 807 (internal quotations omitted), “strategic choices made after less than complete

investigation [of law and facts] are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” Id. at 803 (emphasis added). An attorney

cannot label their decision “strategic” to cure an incomplete investigation. Id.

B. Legal Analysis

To establish that Kuenneke provided ineffective assistance of counsel, Elion must show

that he was prejudiced by Kuenneke’s refusal to object to the career offender enhancement and

that her refusal to object to the enhancement fell below an objective standard of reasonableness.

The Court of Appeals has already found he was prejudiced, thus all that remains is

analyzing the deficiency prong. If Kuenneke was deficient, then she provided Elion with

ineffective assistance of counsel, and he is entitled to resentencing.

1. Kuenneke’s Refusal to Raise the Categorical Approach Argument was

not Strategic

Strategic decisions to not raise certain meritorious arguments are “virtually

unchallengeable.” Strickland at 690. Kuenneke had alternative arguments she chose to make, and

she protested the fairness of the Guidelines. Evid. Hr’g. Tr., 36:18-37:4, Mar. 6, 2024 (Doc. 80).

However, Kuenneke concluded that Elion had no categorical approach argument, not that he had

a weak one. Kuenneke was asked about what she said to Elion and why she did not raise the

objection:

Q. Okay. So you've completed this Mathis analysis and reached those conclusions.

Did you convey those conclusions to Mr. Elion, at least the end result, that the

career offender guideline looks like it applies?

A. Yes. I met with him and informed him I had researched the issue of the look-

alike substance, and whether or not we could make an argument against career

offender, and that I had concluded we could not.

Q. Okay. At sentencing or in advance of sentencing, did you raise any objections

to the guideline calculations?

A. I did not.

Q. So having done all of that work, having pulled all of those records, why not raise

it and give it a try?

A. I didn't believe it was a viable objection to present to the Court.

Evid. Hr’g. Tr., 33:8-23, Mar. 6, 2024 (Doc. 80). Kuenneke’s refusal to raise the

objection was not motivated by a strategic decision but rather an incorrect legal

conclusion.

Having determined that Kuenneke’s failure or refusal to object stemmed not from

strategy but from an incorrect conclusion, the question is whether that erroneous

conclusion is sufficient basis to find that Kuenneke was deficient by falling below an

objective standard of reasonableness.

2. Kuenneke’s Representation was Not Below an Objective Standard of

Reasonableness

Both in Bridges and here, there was no controlling Seventh Circuit precedent on their

respective issues. Criminal defense attorneys cannot predict when there may be a change in law,

however—as Bridges demonstrated—failure to predict a change in law is not always an excuse

for failing to object. The key question is whether Kuenneke’s performance is similar enough to

the attorney in Bridges that the case controls, or whether Kuenneke’s performance is sufficiently

different that Bridges is distinguishable. Comparing Kuenneke’s conduct here to the conduct of

the attorney in Bridges yields multiple, significant differences that distinguish the two.

First, the attorney in Bridges confined his search to just the mandatory authority within

the Seventh Circuit. The Appellate Court pointed out that artificially confining one’s research to

mandatory Seventh Circuit authority does not give a complete picture of the legal landscape;

what happens in other circuits may have predictive value or demonstrate trends. Kuenneke did

not artificially confine herself; she researched state case law and federal law, both within and

outside the Seventh Circuit. As a result, Kuenneke found Robertson and Hinkle, both key in her

analysis.

Second, at the time of Bridges’s sentencing, there was a plethora of case law outside of

the Seventh Circuit—including from other appellate courts—all unanimously supporting a

conclusion that Hobbs Act robbery was not a crime of violence. It would be one thing if the case

law was split, but the case law all pointed in the same direction. Had Bridges’s attorney looked

outside the Seventh Circuit, he would be unable to ignore the building consensus that sufficiently

foreshadowed his argument. Here, in contrast, there were only three relevant cases; two of those

cases (Hudson and Robertson) addressed the “look-alike” mismatch and supported Kuenneke’s

conclusion that Illinois’s look-alike statute included an intent to deceive element. Only one case

(Hinkle) addressed the “delivery,” “distribute” mismatch—but even then, Hinkle was

distinguishable on multiple grounds. Not only did Kuenneke research outside the Seventh

Circuit, there was a dearth of case law that addressed the issue. Additionally, unlike in Bridges

where the building consensus cut against that attorney’s conclusion, here, what sparse case law

was available seemed only to support Kuenneke’s conclusion.

Third, whereas in Bridges, the attorney neither found, nor read, nor analyzed any cases on

the Hobbs Act robbery issue—a rudimentary requirement when determining whether to make a

legal argument or not—this is sharply juxtaposed to Kuenneke’s process. Kuenneke not only

found relevant case law on issues that had hardly been addressed, she also read and analyzed

each of those cases to determine whether they were applicable. Kuenneke read Hudson closely

enough to notice that the Seventh Circuit cited Robertson. Kuenneke observed that Robertson

analyzed the same look-alike statute based on similar language. Kuenneke saw that Hinkle

seemed to contradict her intuition and experience suggesting that “delivery” and “distribute”

were interchangeable, but determined it was inapplicable. Her detailed reading and analysis of

these cases certainly contrasts with the attorney in Bridges.

In short, unlike in Bridges, where the change in law was easily foreshadowed, there was

no case law indicating that Section 404(b) was divisible or indivisible at the time, nor was there

any case law on the “delivery” issue. This was an unsettled and nearly unexplored area of the

law—the “building blocks” were nowhere near established at the time. There was certainly no

“mountain of evidence” indicating that Section 404(b) was divisible—in fact, it was the absence

of that evidence that led the Seventh Circuit to conclude divisibility was ambiguous.

Whereas Bridges’s attorney failed to compare the text of the statutes to the Guideline

definition, not only did Kuenneke correctly compare the text and the Guidelines, she also applied

the categorical approach, recognized two possible mismatches, searched for relevant case law,

analyzed that case law, found no dispositive answer in her research both inside and outside the

Seventh Circuit, performed the divisibility analysis, and applied the modified categorical

approach. Whereas merely comparing the statutes would have independently led Bridges’s

attorney to the conclusion that Hobbs Act robbery was not a valid predicate—meaning Bridges’s

attorney ignored a “clear avenue of relief,”—here, the question was far more complex and

anything but “straightforward.”

Turning away from Bridges, there are further indicators that Kuenneke was not deficient.

For example, in Hinkle, the Fifth Circuit concluded that Texas’s statute was indivisible by

examining Texas’s intermediate appellate case law. The Fifth Circuit found that Texas’s

appellate courts had universally treated Texas’s delivery statute as indivisible. As the divisibility

analysis defers to state law interpretation, the Fifth Circuit merely adopted Texas’s interpretation

of a Texan statute. Elion was convicted under Illinois’s “delivery” statute, not Texas’s, and,

therefore, Kuenneke would know that Illinois state law controls. For that reason alone, the Fifth

Circuit’s ruling in Hinkle had little to no persuasive value. Kuenneke’s ability to evaluate Hinkle

further demonstrates her awareness and familiarity with the analysis, bolstering this Court’s

finding that Kuenneke knew how to properly perform a divisibility analysis—an analysis

explicitly laid out for her in Hinkle.

The Petitioner has alleged that Kuenneke failed to find and rely on Illinois appellate case

law indicating Section 404(b)’s divisibility. However, unlike in Hinkle—where the Fifth Circuit

found that Texas appellate courts universally regarded the Texan “delivery” statute as

indivisible—there were only passing references by Illinois appellate courts that hinted at Section

404(b)’s indivisibility. The Seventh Circuit declined to put any weight on those references in

their analysis; Kuenneke was not deficient for doing the same. Additionally, Kuenneke’s ability

to evaluate state appellate law continues to demonstrate her awareness and familiarity with

the analysis.

In sum, unlike in Bridges, where minimal, basic research would have revealed a clear

avenue to relief; where a short and simple search would have returned a plethora of unanimous

case law; where recent changes in the law should have alerted the attorney to legal changes;

where the law was largely settled, the building blocks were already in place, and the argument

was sufficiently foreshadowed by case law—Kuenneke engaged in extensive research and

analysis, both within and beyond the Seventh Circuit. What sparse case law was available,

Kuenneke found, analyzed, and used accordingly. The “building blocks” of Elion’s argument

were not “already in place,” this was an unsettled and largely unexplored area of law. There were

no recent legal developments—such as amendments to the Guidelines or recent controlling

precedent—that would have tipped Kuenneke off to a merited, let alone a “well-supported”

argument. Additionally, while the fact that no other attorneys at the time were raising the

argument is not dispositive, the fact that no other attorneys had raised this objection does have

some weight in the analysis, as the Seventh Circuit in Bridges stated, and it does not appear that

attorneys within this circuit were making this argument at the time.

Ultimately, an attorney’s effectiveness is evaluated against objective standards of

reasonableness. Kuenneke’s performance in Elion’s case was far from deficient for all the

reasons elaborated on above. Contrary to what the Petitioner claims, Kuenneke’s research and

analysis were not deficient, she simply came to a different conclusion that was later determined

to be incorrect.

3. Kuenneke’s Incorrect Conclusion is not Dispositive

The Seventh Circuit and Kuenneke proceeded through the analysis and came to similar

conclusions. The place of divergence was the final step of the divisibility analysis. Though the

Seventh Circuit and Kuenneke came to different conclusions on divisibility, the Seventh Circuit

was able to analyze Section 404(b) with the guidance of Parzych v. Garland, 2 F.4th 1013, 1019

(7th Cir. 2023), a case decided before Kuenneke’s representation of Elion. Kuenneke did not

have the benefit of that guidance, and it was that guidance that seemingly tipped the Appellate

Court’s analysis from leaning towards divisibility (as Kuenneke had found) to ambiguity. While

it is certainly possible that Kuenneke could have reached an independent conclusion that Section

404(b) was ambiguous without Parzych, without the benefit of that guidance, Kuenneke did not

have an unreasonable basis to conclude that Section 404(b) was divisible.

The Petitioner’s brief makes much and more of the quote that “a mistake of law is

deficient performance.” (Doc. 84 at 10) (quoting Cates v. U.S., 882 F.3d 731, 736 (7th Cir.

2018)). The Petitioner argues that an analysis of the deficiency prong is a straightforward

evaluation of whether the defense attorney in question made a mistake of law. The Petitioner is

incorrect; he either misstates or misunderstands the law.

An incorrect conclusion alone is insufficient to find that an attorney’s representation was

deficient. As the Seventh Circuit articulated in Bridges: “it is not enough to show that a

challenge to the career offender enhancement should have prevailed.” Bridges at 802 (emphasis

added). Though Bridges and Cates (which the Bridges court cites) explicitly state that a mistake

of law is deficient performance, the Petitioner has stripped those quotes of their context; read in

context, not only are Cates and Bridges highly distinguishable, but it is clear that a “mistake of

law” is far different from an incorrect legal conclusion—it is the kind of “egregious” error that

has been long-recognized in deficiency inquiries. See e.g., Williams v. Lemmon, 557 F.3d at 538.

In Cates there was a clear error in a jury instruction that plainly contradicted both the text

of the statute and well-established Seventh Circuit precedent:

[T]he jury instruction flatly contradicted the text of [the statute] and our [prior]

decision . . . . The instruction plainly misstated the law . . .

. . . .

The flaw in the instruction was both obvious and clear under current law. . . . Plain

error requires obvious error that is clear under current law.

Cates v. U.S., 882 F.3d at 737 (internal citations and quotations omitted). The Appellate Court in

Cates was evaluating a situation of plain and blatant error. The Cates court uses the same

language the Lemmon Court used in describing an egregious error. Compare Cates, 882 F.3d at

736 (“[when] [t]here is no conceivable strategic reason for a defense lawyer to forgo a challenge

to a prejudicial jury instruction; a mistake of law is deficient performance”), with Lemmon, 557

F.3d at 538 (“[A] single error may suffice if that error is sufficiently egregious and prejudicial . .

. . [A]n egregious error . . . [is] an omission of something obviously better (in light of what was

known at the time) than the line of defense that counsel pursued.”).

The specific language that a mistake in law amounts to deficient performance originates

from Hinton v. Alabama, 571 U.S. at 274 (2014):

An attorney’s ignorance of a point of law that is fundamental to his case combined

with his failure to perform basic research on that point is a quintessential example

of unreasonable performance under Strickland.

Id. (emphasis added). The Bridges court quotes Hinton in other parts of the opinion that

articulate the well-established standard that a mistake of law is not ipso facto deficient

performance; rather it is a mistake of law that is egregious, a plain error, or an error that results

from failing to understand a fundamental and basic part of their case.

In reviewing the “counterfeit” and “look-alike” mismatch, the Seventh Circuit declined to

rule on the matter, finding the issue required careful consideration in the future. In reviewing the

“advertising” issue and the subsequent “delivery” issue, the Seventh Circuit exhausted all

available tools in the divisibility analysis, with the benefit of Parzych. Again, the Seventh Circuit

concluded that Section 404(b)’s divisibility was ambiguous, and it was on that basis that

Section 404(b) was deemed indivisible. The answer was far from clear, as both the length and

thoroughness of the court opinions and briefs involved are testament to, this analysis was highly

granular and reasonable legal minds can, and have, disagreed.

Kuenneke’s refusal to object was not based on ignorance of the law—quite the opposite,

it was based on her professional judgment—informed by a thorough analysis of the case law, her

own extensive experience, and her independent and reasonable interpretation of the statute. She

was well-aware of the law (or lack thereof), the categorical approach, and the divisibility

analysis. Contrary to what the Petitioner repeatedly suggests, Kuenneke did not have an ethical

duty to make meritless or frivolous arguments, in fact, she had a duty not to.

Kuenneke researched the case law, term definitions, and analyzed that information

considering her training and experience—that is far beyond “basic research.” Kuenneke’s

process was a far cry from the attorney in Bridges. While Kuenneke was ultimately incorrect—

her conclusion was based on a reasonable, alternative interpretation based on her professional

judgment, informed by research and decades of experience. Her conclusion is not so outlandish

that it would rise to the level of the plain, clear, or egregious error necessary to find that

Kuenneke’s mistaken conclusion rendered her deficient.

Had Kuenneke been completely ignorant of the law, had she been unaware of the

categorical approach, had she not compared the statutes, had she not recognized a categorical

approach problem, had she not researched the “look-alike” mismatch, had she not researched the

“advertising” mismatch, had she not conducted a divisibility analysis, had the error been blatant

and apparent; then perhaps her mistake may have risen to deficiency. But, when an attorney

takes all appropriate precautions, performs extensive research, uses all the avenues at their

disposal, and exhausts all available tools; and only then makes a reasonable, informed,

professional judgment call—that is far from falling below an objective standard of

reasonableness.

While the Petitioner focuses in on the fact that Kuenneke ultimately had a winning

argument, an attorney is not deficient based on the results of their representation—if that were

the case, Strickland’s deficiency prong would be entirely superfluous. Rather, whether an

attorney is deficient depends on how they operated, with the knowledge they had at the time. If

attorneys were deemed ineffective every time they came to a legal conclusion that was later ruled

to be incorrect, the Bar would be memberless, and the Bench would be vacant. Suffice it to say,

Kuenneke’s incorrect conclusion does not render her representation ineffective here.

VI. CONCLUSION

Kuenneke’s testimony was honest and truthful. Her testimony is also supported by other

parts of her affidavit. Kuenneke performed extensive research and analysis in an unsettled and

unexplored area of law. She concluded based on her research, intuition, and decades of

professional experience that Elion did not have a categorical approach argument. She was not

obliged to raise an issue that she, in good faith and after a reasonable investigation, concluded

was meritless. Though Kuenneke was later shown to be incorrect, that alone is insufficient to

hold her deficient.

The cumulative evidence here demonstrates that Kuenneke’s representation was not

below an objective standard of reasonableness and, therefore—while her error prejudiced

Elion—she did not provide Elion with ineffective assistance of counsel. Consequently, Elion’s §

2255 petition is hereby DENIED.

IT IS SO ORDERED.

DATED: October 17, 2024

s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE