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Minney v. United States

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

July 11, 2018

ANTHONY J. MINNEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ANTHONY J. MINNEY, GREENVILLE - FCI, GREENVILLE FEDERAL CORRECTIONAL INSTITUTION

          ENTRY DISCUSSING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY

          Hon. Jane Magnus-Stinson, United States District Court Chief Judge

         Movant, 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.

         I. The § 2255 Motion

         The 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).

         The 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 sentence:

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 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 21, 2016.

         Minney 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.

         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). 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.”).

         At 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 ...


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