United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING A CERTIFICATE OF
EVANS BARKER, United States District Judge.
reasons explained in this Entry, the motion of Brandon Lomax
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.
The § 2255 Motion
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
October 23, 2013, Mr. Lomax was charged in a multi-count
multi-defendant indictment. Mr. Lomax 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 two through nine charged Mr. Lomax with distribution
of heroin in violation of 21 U.S.C. § 841(a)(1). Count
21 charged Mr. Lomax with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The
United States had previously filed an information pursuant to
21 U.S.C. § 851(a)(1), which charged that Mr. Lomax had
two prior felony controlled substance convictions.
day jury trial was held from January 29 to February 10, 2014.
The jury found Mr. Lomax guilty of all counts. On November
21, 2014, Mr. Lomax was sentenced to life imprisonment (life
on count one; thirty years each on counts two through nine,
and fifteen years on count 19, all counts to run
concurrently) to be followed by ten years of supervised
release. Mr. Lomax was also assessed a special assessment of
$1000. The Court entered judgment on December 2, 2014.
Lomax 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 there was no error in the district
court's finding that he had two prior drug convictions,
which enhanced his mandatory minimum sentence to life
imprisonment. See United States v. Lomax, et al.,
916 F.3d 468 (7th Cir. 2016).
March 27, 2017, Mr. Lomax filed a motion for post-conviction
relief pursuant to 28 U.S.C. § 2255 alleging that he
received ineffective assistance of counsel during trial and
claiming that Johnson v. United States, 135 S.Ct.
2551 (2015), required modification of his sentence.
Lomax seeks relief arguing: (1) ineffective assistance of
counsel for failing to request that the court conduct an
inquiry of the jury when counsel became aware of potential
juror bias; and (2) based on Johnson, he is no
longer an armed career criminal or a career offender, and his
sentence is therefore unconstitutional. The United States
argues that trial counsel was not ineffective and that
Johnson offers Mr. Lomax no sentencing relief.
Failure to Notify Regarding a Juror's Fear
Lomax argued he received ineffective assistance of counsel
when his attorney, Mr. Richard L. Ford, failed to notify the
court and seek an inquiry of the jury after he became aware
that the entire jury told the government that they were in
fear for their personal safety and wanted security escorts to
and from their vehicles each day of trial.
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. Lomax
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. Lomax ...