United States District Court, S.D. Indiana, Terre Haute Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
RELIEF PURSUANT TO 28 U.S.C. § 2255
WILLIAM T. LAWRENCE, SENIOR JUDGE UNITED STATES DISTRICT
matter is before the Court on a Motion to Vacate, Set Aside
or Correct a Sentence pursuant to 28 U.S.C. § 2255 filed
by Petitioner Harmony Gibbons (“Gibbons”). For
the reasons explained in this Order, the motion must be
granted to the extent that Ms. Gibbons is
permitted to file a direct appeal. It is in all other
respects denied. In addition, the Court
finds that a certificate of appealability should not issue.
Section 2255 Motion Standards
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). “Relief under
this statute is available only in extraordinary situations,
such as an error of constitutional or jurisdictional
magnitude or where a fundamental defect has occurred which
results in a complete miscarriage of justice.”
Blake v. United States, 723 F.3d 870, 878-79 (7th
Cir. 2013) (citing Prewitt v. United States, 83 F.3d
812, 816 (7th Cir. 1996); Barnickel v. United
States, 113 F.3d 704, 705 (7th Cir. 1997)).
Factual and Procedural Background
February 17, 2016, officers with the Sullivan County
Sheriff's Department conducted a traffic stop on a
vehicle driven by Gibbons, who was found to be driving with a
suspended license. United States v. Gibbons, No.
2:16-cr-00008-WTL-CMM-1 (S.D. Ind.) (hereinafter “Crim.
Dkt.”), Dkt. No. 31. During the course of the traffic
stop, officers located an automatic handgun. Officers also
located approximately 16.6 grams of methamphetamine and other
drug paraphernalia. Id.
April 20, 2016, Gibbons was charged in this Court in an
Indictment with one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Crim.
Dkt. No. 1.
January 5, 2017, Gibbons entered into a petition to enter a
plea of guilty and plea agreement pursuant to Federal Rules
of Criminal Procedure 11(c)(1)(B). Crim. Dkt. No. 26. Gibbons
agreed to plead guilty as charged in the Indictment. The
parties agreed that the Court would use its discretion to
fashion a sentence. Id. at 2. The Government agreed
to recommend a sentence within the advisory sentencing
guidelines range, and Gibbons was free to request any
sentence. Id. at 4. Gibbons agreed to waive her
right to appeal the conviction on any ground, and if she was
sentenced within or below the advisory guidelines range of a
total offense level of 25, she waived her right to appeal the
sentence on any ground. Id. at 10-16. The parties
also agreed to the factual basis for the plea. Id.
agreed that the Sentencing Guidelines were not mandatory or
binding on the Court, but were advisory in nature, and that
the final determination would be made by the Court.
Id. at 9. In preparation for sentencing, the United
States Probation Office prepared a presentence report (PSR).
See Crim. Dkt. No. 31. Gibbons' base offense
level was 24 pursuant to U.S.S.G. § 2K2.1(a)(2).
Id. ¶ 13. Four levels were added for possessing
a firearm in connection with another felony offense pursuant
to U.S.S.G. § 2K2.1(b)(6)(B). Id. ¶ 14.
Three levels were subtracted for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1. Id. ¶¶
20-21. Her total offense level was 25. Id. ¶
22. Gibbons' total criminal history score was 9, which
established a criminal history category of IV. Id.
¶ 34. An offense level 25 combined with a criminal
history category IV resulted in a Guidelines range of 84-105
months' imprisonment. Id. ¶ 101. There were
no objections to the presentence report sentencing
30, 2017, Gibbons appeared before the Court and pleaded
guilty to Count 1 of the Indictment. Crim. Dkt. No. 35. The
Court accepted her plea. The Court, departing from the
guidelines, sentenced Gibbons to 78 months' imprisonment
to be followed by three years' supervised release. Crim.
Dkt. No. 36.
keeping with the terms of the plea agreement, Gibbons did not
appeal. On July 5, 2018, Gibbons filed the pending motion to
vacate, set aside, or correct her sentence pursuant to 28
U.S.C. § 2255. Dkt. 1. The Court ordered Gibbons to show
cause why the motion was not untimely. Dkt. No. 2. Gibbons
responded that she was denied access to her legal documents
and the law library for a period of time while the library
was flooded. Dkt. No. 3. The United States filed a response
to her § 2255 motion, and Gibbons filed a reply. The
motion is ripe for resolution.
seeks relief pursuant to § 2255 arguing that her trial
counsel provided ineffective assistance of counsel by: (1)
failing to file an appeal as requested; (2) failing to
communicate with her; (3) failing to challenge the sentencing
enhancement as “double-counting;” and (4) failing
to investigate. Dkt. Nos. 1, 3.
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). If a petitioner cannot
establish one of the Strickland prongs, the court
need not consider the other. Groves v. United
States,755 F.3d 588, 591 (7th Cir. 2014). To satisfy
the first prong of the Strickland test, a petitioner
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 whether counsel's
performance was outside the wide range of professionally
competent assistance. Id. In order to satisfy the
prejudice component, 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.”
Strickland, 466 U.S. at 694. In addition, ...