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Green v. United States

United States District Court, N.D. Indiana, Hammond Division

June 1, 2018




         Ebony Green has filed a motion (DE # 59) challenging her sentence pursuant to 28 U.S.C. § 2255. For the reasons identified below, Green's motion will be denied.

         I. BACKGROUND

         On March 16, 2016, pursuant to her plea agreement with the government, Green pleaded guilty to possession with intent to distribute crack cocaine. (DE # 37.) On September 27, 2016, this court sentenced Green to a term of imprisonment of 77 months, a term of supervised release, and payment of a special assessment. (DE # 56.)

         Green now moves to vacate her sentence on the basis that she received ineffective assistance of counsel. (Id.) While Green identifies two grounds in her motion, both grounds relate to the career criminal enhancement of her sentence pursuant to Section 4B1.1 of the United States Sentencing Guidelines (“the Guidelines”). In Ground One, Green argues that her counsel suffered from a conflict of interest because his father died during the pre-trial period. She claims that after her counsel's loss, he was preoccupied and incommunicative. (Id. at 4.) She also claims that her counsel “failed to present a defense, failed to object to incorrect facts in the PSI, [1] breakdown in attorney/client communication.” (Id.) Finally, Green argues that her counsel should have objected to the application of the career criminal enhancement to her sentence. (Id.)

         In Ground Two, Green argues that her counsel failed to “challenge or consider the ramifications of the new Supreme Court decision in Begay v. United States, 128 S.Ct. 1581 (2008) family ending in Johnson v. United States, 135 S.Ct. 2551 (2015) . . . .” (Id. at 5.) She argues that, in light of Johnson, her aggravated battery conviction no longer qualifies as a predicate crime of violence for the purpose of the career criminal enhancement. (Id.) She also argues that the elements of her aggravated battery conviction are not the same as the elements of her conviction in this case, and thus it may not be used as a predicate offense. (Id.)


         A § 2255 motion allows a person in federal custody to attack his or her sentence on constitutional grounds, because it is otherwise illegal, or because the court that imposed it was without jurisdiction. Rule 4 of the Rules Governing § 2255 Proceedings requires the court to promptly examine the motion. “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.” Id.


         As a preliminary matter, this court notes that Green's plea agreement contained an appeal waiver. (DE # 32 at 4.) “Appeal waivers in plea agreements are typically enforceable. However, for an appeal waiver to bar review, the issue appealed “must fall within its scope.” United States v. Adkins, 743 F.3d 176, 192 (7th Cir. 2014) (internal citations omitted). Here, Green's plea agreement states that she agrees to waive her right to appeal her sentence and conviction “on any ground other than a claim of ineffective assistance of counsel.” (Id.) Thus, because Green presently makes a claim of ineffective assistance of counsel, her claim is outside the scope of her appeal waiver and this court may consider her motion. See United States v. Smith, 669 Fed.Appx. 314, 315-16 (7th Cir. 2016), cert. denied, 137 S.Ct. 1115 (2017).

         “Under Strickland v. Washington, 466 U.S. 668 (1984), a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.” Massaro v. United States, 538 U.S. 500, 505 (2003). “To satisfy the deficient performance prong, a petitioner must show that the representation his attorney provided fell below an objective standard of reasonableness.” Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015). “A court's scrutiny of an attorney's performance is ‘highly deferential' to eliminate as much as possible the distorting effects of hindsight, and we ‘must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” Id. (internal citation omitted).

         To satisfy the prejudice prong, a petitioner must establish that “‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Sanders v. United States, 288 Fed.Appx. 283, 287 (7th Cir. 2008) (internal citation omitted). A petitioner's “failure to establish either element of the Strickland framework will result in denial of his claim.” Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007).

         Green identifies a number of issues regarding her counsel's performance, such as her counsel's failure to “present a defense” and failure to “object to incorrect facts in the PSI.” (DE # 59 at 4.) However, she fails to provide any specific factual allegations regarding these claims. “To state an ineffective assistance claim, the petitioner must identify specific acts or omissions by defense counsel that fall outside the range of professionally competent assistance. Vague or general allegations are insufficient.” Jackson v. United States, 28 F.3d 1216 (7th Cir. 1994) (table) (internal citation omitted). See also Sanders, 288 Fed.Appx. at 287 (while petitioner alluded to a number of shortcomings in his counsel's performance, most of the theories were insufficiently developed to warrant consideration); United States v. Penass, 997 F.2d 1227, 1229 (7th Cir. 1993). Thus, this court will limit its review to the two claims that Green sufficiently developed: (1) her counsel was ineffective due to a death in his family; and (2) her counsel was ineffective for failing to object to the career criminal enhancement to her sentence.

         A. Confli ...

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