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Glover v. United States

United States District Court, S.D. Indiana, Indianapolis Division

March 9, 2018

DEMOND GLOVER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING A CERTIFICATE OF APPEALABILITY

          SARAH EVANS BARKER, JUDGE.

         For the reasons explained in this Entry, the motion of Demond Glover for relief pursuant to 28 U.S.C. § 2255 must be denied and this action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. The § 2255 Motion

         A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The scope of relief available under § 2255 is narrow, limited to “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (internal citations omitted).

         II. Factual Background

         On October 23, 2013, Mr. Glover was charged in a multi-count multi-defendant indictment. Mr. Glover was charged in count one with conspiracy to distribute 1, 000 grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1), 846. Counts ten, eleven and fourteen charged Mr. Glover with distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Count fifteen charged Mr. Glover with possession with intent to distribute 100 grams or more of monoacetylmorphine in violation of 21 U.S.C. § 841(a)(1). The United States had previously filed an information pursuant to 21 U.S.C. § 851(a)(1), which charged that Mr. Glover had a prior felony controlled substance conviction.

         A nine day jury trial was held from January 29 to February 10, 2014. The jury found Mr. Glover guilty of all five counts. On September 10, 2014, Mr. Glover was sentenced to 330 months of imprisonment to be followed by ten years of supervised release. Mr. Glover was also assessed a special assessment of $500. The Court entered judgment on September 16, 2014.

         Mr. Glover appealed his conviction and sentence. On March 8, 2016, the Seventh Circuit upheld his conviction and sentence, finding that the evidence was sufficient to establish conspiracy and that an error in calculating Mr. Glover's criminal history as a career offender was harmless. See United States v. Lomax et al., 916 F.3d 468 (7th Cir. 2016).

         On October 11, 2016, Mr. Glover filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255 alleging that he received ineffective assistance of counsel during trial, sentencing and appeals, and claiming that Johnson v. United States, 135 S.Ct. 2551 (2015) applied. On April 3, 2017, Mr. Glover filed a motion to dismiss his Johnson claim. Dkt. 16. On April 12, 2017, the Court dismissed Mr. Glover's Johnson claim and ordered the United States to respond to the remainder of Mr. Glover's 28 U.S.C. § 2255 motion.

         III. Discussion

         Mr. Glover seeks relief pursuant to § 2255 arguing ineffective assistance of counsel in three instances: (1) trial counsel failed to object when the sentencing court imposed a four level enhancement under U.S.S.G. 3B1.1(a) for playing a leadership role in a conspiracy; (2) trial counsel failed to notify the court regarding a juror's fear of a spectator in the courtroom; and (3) trial counsel failed to seek certiorari to the Supreme Court based on Molina-Martinez v. United States, 136 S.Ct. 1338 (2016). The United States argues that trial counsel was not ineffective. Rather, the United States argues that trial counsel was effective in securing a 330 months conviction when the sentencing guideline provided for a sentencing range from 360 months to life.

         A petitioner claiming ineffective assistance of counsel bears the burden of showing (1) that trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688- 94 (1984); United States v. Jones, 635 F .3d 909, 915 (7th Cir. 2011). To satisfy the first prong of the Strickland test, Mr. Glover must direct the Court to specific acts or omissions of his counsel. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). The Court must then consider whether in light of all of the circumstances counsel's performance was outside the wide range of professionally competent assistance. Id. In order to satisfy the prejudice component, Mr. Glover must establish that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

         A. Failure to Object to Sentencing Enhancement

         Mr. Glover's first claim of ineffective assistance of counsel relates to his trial counsel's alleged failure to object to the sentencing court's imposition of a four-level enhancement under U.S.S.G. § 3B1.1(a) based on his ...


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