Miscalculations in Guideline range claims cannot be brought in § 2255 petitions (United States v. Coleman, No. 12-2621 (7th Cir.))

United States v. Coleman, No. 12-2621 (7th Cir.). Decided August 14, 2014. The defendant in this case pled guilty to a controlled substance violation involving crack cocaine. The defendant was considered a career offender under § 4B1.1 of the Sentencing Guidelines because he had two prior crimes of violence, one being a cocaine charge and the other a sexual assault charge. The career offender designation increased his guideline range from 140-175 months to 188-235 months, and the defendant was ultimately sentenced to 225 months. Subsequent case law determined that the sexual assault charge did not constitute a crime of violence. Therefore, defendant should not have been considered a career offender under § 4B1.1 and he correspondingly should have received a shorter sentence.

Defendant filed a motion pursuant to 28 U.S.C. § 2255, which is a federal collateral attack mechanism that is similar to  Illinois’ Post-Conviciton Hearing Act, arguing that he was improperly sentenced as a career offender and that he should receive a new sentencing hearing. The trial court allowed the motion, and resentenced the defendant to 120 months after he also received additional downward variances due to another change in the law that affected his base level calculation. The government appealed, arguing that that the defendant’s argument was sound but that it could not be properly raised in a § 2255 petition.

In support of its position, the government argued that the court’s recent decision in Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013) was controlling. The Coleman court indicated that,”In Hawkins, this court recognized that “not every error is corrigible in a post-conviction proceeding, even if the error is not harmless.” 706 F.3d at 823. Relief under § 2255 is available “only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878–79 (7th Cir. 2013). “[D]eviations from the Sentencing Guidelines generally are not cognizable on a § 2255 motion.” Welch v. United States, 604 F.3d 408, 412 (7th Cir. 2010); Scott v. United States, 997 F.2d 340, 343 (7th Cir. 1993). In Hawkins, we held that the erroneous determination that the petitioner was a career offender in calculating his sentence was not a cognizable error under § 2255 post-Booker. Hawkins, 706 F.3d 820; see United States v. Booker, 543 U.S. 220 (2005).” Pg. 4. The Hawkins court held that “the error in calculating the Guidelines range did not constitute a miscarriage of justice for § 2255 purposes given the advisory nature of the Guidelines and the district court’s determination that the sentence was appropriate and that it did not exceed the statutory maximum.” The Coleman court relied on its prior decision in Hawkins to reach the same conclusion: namely, that miscalculations in Guideline range claims could not be brought under § 2255.

Pro-tip: read the service requirements before filing a petition (People v. Kuhn, 2014 IL App (3d) 130092)

People v. Kuhn, 2014 IL App (3d) 130092 (August 15, 2014) LaSalle Co. Affirmed.
 Defendant in this case filed a 2-1401 petition, which is a collateral attack petition brought under 735 ILCS 5/2-1401. “The notice requirements for filing a section 2-1401 petition are governed by Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989). Ill. S. Ct. R. 106 (eff. Aug. 1, 1985). Rule 105 provides that notice may be served by either summons, certified or registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). “The object of process is to notify a party of pending litigation in order to secure his appearance.” Professional Therapy Services, Inc. v. Signature Corp., 223 Ill. App. 3d 902, 910 (1992). In construing the sufficiency of the notice, we focus on whether the object and intent of the law were substantially attained rather than the formal and technical requirements. People v. Ocon, 2014 IL App (1st) 120912.” Kuhn at ¶ 12.

The defendant, who was in prison, properly filed his petition, but he served notice by regular mail instead of certified mail. Therefore, notice was improper under Illinois Supreme Court Rule 105 because the notice was not sent by certified mail. The case was dismissed by the trial court because defendant failed to provide proper notice. The defendant appealed, “objecting to his failure to properly serve the State with notice of his section 2-1401 petition.” He was essentially objecting on the State’s behalf that his notice was improper. The court held that he didn’t have standing to object on the State’s behalf, and the trial court’s dismissal of the defendant’s petition was affirmed. The takeaway message from this case is to be sure you read, and strictly adhere to, the service requirements before filing any form of collateral attack petition.

How investigators can be crucial in post-conviction cases (People v. Bolden, 2014 IL App (1st) 123527)

People v. Bolden, 2014 IL App (1st) 123527 (June 18, 2014) Cook Co., 3d Div. Reversed and remanded.
(Modified upon denial of rehearing 8/6/14.). Syllabus: Where defendant’s postconviction petition challenging his conviction for two murders was dismissed without an evidentiary hearing, the appellate court reversed the dismissal and remanded for an evidentiary hearing, since defendant made a substantial showing that he was prejudiced by his trial counsel’s unprofessional errors, including his failure to move for the dismissal of the indictment after two firearms defense counsel requested in discovery were destroyed by the police and his failure to interview three witnesses in connection with a possible alibi, especially when there was a reasonable likelihood that a better result could have been achieved absent those errors.

The defendant here made two ineffective assistance claims. First, that trial counsel erred by not moving to dismiss the charges based on the State’s discovery violation. The State destroyed guns involved in the case after the defendant requested access to them in his discovery motion, and the defendant argued that he was prejudiced by his inability to send the guns to a lab to have them independently tested after they were destroyed. The Bolden court held that counsel’s performance was deficient under Strickland on this allegation because there would have been no strategic purpose in not filing a motion for sanctions. Nevertheless, the court held that the defendant did not satisfy the “prejudice” prong of Strickland because, essentially, the results from the tests that could have been performed on the guns would only be speculative as far as their probative value, so the case likely would not have been dismissed because the depravation to the defendant would not be great enough to warrant dismissal of the charges.

The second issue that the defendant raised–and actually prevailed on here–was a failure to investigate claim. These claims are quite common in post-conviction petitions. Usually the defendant alleges that he told his attorney to talk to so-and-so, and his attorney failed to do so and then failed to call that person as a witness. This type of claim usually fails, because counsel’s failure to call the witness is usually chalked up to trial strategy and the defendant is thereafter unable to meet the Strickland test. But that is exactly what the defendant was able to do in this case.

The defendant claimed that he told his attorney to talk to an alibi witness and two other witnesses who corroborated the alibi witness’ story. In support of his petition, the defendant “presented a form on which his trial counsel submitted a written request for an investigator working for the public defender to contact Vondell Goins, Octavia Jackson, and Todd Henderson. Trial counsel supplied phone numbers, addresses, and dates to contact the witnesses. The forms show that an investigator wrote “oral response has been given” to trial counsel.”¶ 31. The defendant “also attached to the petition affidavits from Goins, Jackson and Henderson. Goins swore that she spoke to police in J&J after the shooting, but no investigator or attorney contacted her between the night of the murders in 1994 and 2011, when an investigator working on the postconviction petition contacted her.” ¶ 32. The other affidavits were similar. Based on counsel’s failure to investigate these witnesses, the court held that Bolden made a substantial showing of a reasonable likelihood that he would have achieved a better result but for trial counsel’s errors. ¶ 51.

There are some exceptional things about this case that made it a winning case. This case underscores the importance of investigators. The original investigator was tasked with contacting these witnesses. The defendant was able to provide evidence (which itself is unusual) that he had asked the investigator (through counsel) to contact these witnesses. Because the investigator was acting as trial counsel’s agent, trial counsel ultimately became responsible for the investigator’s failure to contact these witnesses. But while the first investigator caused the error, the second investigator (who was working with post-conviction counsel and later contacted these witnesses) was able to prove the error of the first. The second investigator was really the key to making this claim successful, which demonstrates how invaluable good investigators can be to post-conviction claims that are usually very difficult to prove. The defense team’s investigation in this case was exceptional and it yielded exceptional results.

What is newly discovered evidence? (People v. English, 2014 IL App (1st) 102732-B)

People v. English, 2014 IL App (1st) 102732-B (June 18, 2014) Cook Co., 3d Div. Affirmed.
(Modified upon denial of rehearing 7/30/14.). Syllabus: Defendant was properly denied leave to file a successive postconviction petition alleging his actual innocence based on the claim that the State’s three inculpatory witnesses recanted their trial testimony and claimed that the inculpatory testimony was the result of police abuse. Since the allegations of defendant’s petition were not sufficiently specific to meet the procedural requirements of a successive petition alleging actual innocence, the evidence defendant proposed to present did not qualify as newly discovered evidence for purposes of the Post-Conviction Hearing Act, and there was no evidence corroborating defendant’s claims of police misconduct.

This case provides a good illustration of what is necessary to meet the threshold procedural requirements for filing a successive post-conviction petition.

“To be entitled to relief under the Act, a defendant must demonstrate a substantial deprivation of his constitutional rights in the proceedings that produced his conviction. People v. Morgan, 212 Ill. 2d 148, 153 (2004). The Act contemplates the filing of only one postconviction petition. Morgan, 212 Ill. 2d at 153. “Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” 725 ILCS 5/122-3 (West 2010). The supreme court, however, has carved out an exception to this rule, relaxing the bar to successive postconviction petitions when fundamental fairness requires. Morgan, 212 Ill. 2d at 153. Generally, for a reviewing court to consider a defendant’s successive postconviction petition on its merits, the defendant must show both “cause” for his or her failure to raise the claim in the initial postconviction petition and “prejudice” resulting from this failure. People v. Pitsonbarger, 205 Ill. 2d 444, 459-60 (2002). Even if the defendant cannot meet the cause-and-prejudice test, the court may consider the successive petition if the defendant can show that consideration is “necessary to prevent a fundamental miscarriage of justice.” Pitsonbarger, 205 Ill. 2d at 459. To demonstrate a fundamental miscarriage of justice, the defendant must show actual innocence. To obtain relief under a theory of actual innocence based on “newly discovered” evidence, the defendant must offer evidence that was not available at the original trial and that could not have been discovered sooner through diligence. Morgan, 212 Ill. 2d at 154. In order to be considered, the evidence must be material, noncumulative, and of such a conclusive nature, that it would probably change the result on retrial. People v. Washington, 171 Ill. 2d 475, 489, (1996).” English, 2014 IL App (1st) 102732-B ¶35-36

The “newly discovered evidence” that defendant presented here were five-year-old and ten-year-old affidavits from State witnesses who testified in connection with a previous murder case, where those witnesses indicated that they were subjected to police misconduct, and two dated newspaper articles indicating that a “naming Detective McWeeny as one of the former Area 2 detectives that had been granted immunity in the investigation into police misconduct at Area 2.”

The Court held that the evidence that defendant submitted with his petition did not meet the “newly discovered” evidence test. The Court reasoned that the claims concerning police misconduct supported by the affidavits, which were five and ten years old, respectively, could have been raised in defendant’s original post-conviction petition. Furthermore, the newspaper articles indicating that the detective received immunity did not directly link to the claims made in those affidavits because the affidavits did not identify that particular detective as being the perpetrator of the police misconduct. Therefore, taken together, this evidence would not “probably change the result on re-trial,” as is required to meet the threshold requirement for a successive petition based on actual innocence under the Act.