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Lomax v. United States

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

March 9, 2018

BRANDON LOMAX, 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, United States District Judge.

         For the 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.

         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. 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.

         A nine 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.

         Mr. 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).

         On 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.

         III. Discussion

         Mr. 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.

         A. Failure to Notify Regarding a Juror's Fear

         Mr. 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.

         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. 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 ...


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