United States District Court, S.D. Indiana, Indianapolis Division
ANTHONY J. MINNEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ANTHONY J. MINNEY, GREENVILLE - FCI, GREENVILLE FEDERAL
ENTRY DISCUSSING MOTION FOR RELIEF PURSUANT TO 28
U.S.C. § 2255 AND DENYING CERTIFICATE OF
Jane Magnus-Stinson, United States District Court Chief Judge
Anthony J. Minney, filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. For
the reasons explained in this Entry, Minney's motion for
relief must be denied. The Court also finds
that a certificate of appealability should not issue.
The § 2255 Motion
motion for relief pursuant to 28 U.S.C. § 2255 is
subject to the screening directed by Rule 4 of the Rules
Governing Section 2255 Proceedings in the United States
District Court. This Rule provides:
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.
Rules Governing Section 2255 Proceedings 4(b).
scope of relief available under § 2255 is narrow. A
defendant is entitled to relief under § 2255 where the
error is jurisdictional, constitutional or is a fundamental
defect which inherently results in a complete miscarriage of
justice. Boyer v. United States, 55 F.3d 296, 298
(7th Cir.), cert. denied, 516 U.S. 904 (1995). In
the language of the statute itself, a district court has
jurisdiction to grant relief from a federal conviction or
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).
record reflects that Minney pled guilty to unlawful
possession of a firearm in violation of 18 U.S.C. § 922
(Count 1) in case number 1:15-cr-63-LJM-DML-1. In pleading
guilty Minney had the benefit of a Plea Agreement pursuant to
Rule 11(c)(1)(B) and the United States dismissed Counts 2 and
3 of the Indictment. Final judgment was entered on November
now seeks to have his conviction vacated based on the theory
that evidence of the firearm should have been suppressed. He
argues that “counsel should have insisted on
interlocutory appeal” after the trial judge denied his
motion to suppress.
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). Minney cannot meet this
burden because counsel adequately sought the suppression of
evidence from both the trial court and the Seventh Circuit.
An attorney cannot be ineffective for failing to present an
issue that is certain to fail. See United States v.
Carter, 355 F.3d 920, 924 (7th Cir. 2004) (“First,
counsel cannot be said to be deficient for failing to take
frivolous action, particularly since a frivolous effort takes
attention away from non-frivolous issues. Second, it is
evident that failing to make a motion with no chance of
success could not possibly prejudice the outcome.”).
trial and on appeal Minney's counsel sought to suppress
the evidence collected during the search of his residence at
3421 Arthington Boulevard in Indianapolis, Indiana, on
January 23, 2015. Counsel argued that the search continued in
violation of Fourth Amendment even after the items listed in
the warrant were located and that the seizure of firearms
exceeded the scope of the search warrant. Crim. Dkt. 49. The
motion to suppress was fully briefed and a hearing was held
on June ...