Gibbons v. United States

          ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255

          HON. WILLIAM T. LAWRENCE, SENIOR JUDGE UNITED STATES DISTRICT COURT

         This 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.

         I. Section 2255 Motion Standards

          A 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)).

         II. Factual and Procedural Background

          On 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.

         On 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.

         On 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. at 7-8.

         Gibbons 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 calculations.

         On May 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.

         In 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.

         III. Discussion

         Gibbons 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.

         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). 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, ...