United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
T. MOODY UNITED STATES DISTRICT COURT.
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.
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.)
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,  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.
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.
§ 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.
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.
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
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).
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.