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United States v. Rodgers

United States District Court, N.D. Indiana, South Bend Division

July 26, 2019




         Lorenzo Rodgers pled guilty to possessing a firearm as a felon and received a sentence of 92 months of imprisonment. He now moves to vacate his conviction and sentence under 28 U.S.C. § 2255, arguing that he received ineffective assistance of counsel. The Court appointed counsel to assist Mr. Rodgers in procuring evidence to support his claim, and the motion has been fully briefed. For the following reasons, the Court denies Mr. Rodgers' motion.


         In April 2017, police officers in South Bend responded to a call about a domestic disturbance. Upon arriving at the home, they found a distraught Shakyra Brown, who had called 911, and Lorenzo Rodgers, who was shouting profanities at her. The officers could smell marijuana and saw what appeared to be marijuana on the floor and a table. Ms. Brown told the officers that she and Mr. Rodgers had been in an argument and that Mr. Rodgers had pointed a firearm at her. She led the officers into a bedroom, where a handgun was sticking out from under a mattress. Officers then applied for and received a warrant to search the home. They found two loaded handguns, one of which Mr. Rodgers later admitted to possessing, plus an assortment of accessories and ammunition. They also found drugs and drug paraphernalia, including marijuana and a substance suspected to be heroin; baggies and two digital scales; and a large amount of cash wrapped in rubber bands and hidden in the ceiling of the bathroom. In an interview with the ATF later that day, Ms. Brown reiterated that Mr. Rodgers had pointed a firearm at her during an argument.

         Mr. Rodgers was charged with possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1), and received appointed counsel. He later pled guilty pursuant to a plea agreement. In that agreement, Mr. Rodgers agreed to plead guilty and to waive his right to challenge his conviction or sentence on any ground other than a claim of ineffective assistance of counsel. The government also agreed to recommend a three-level reduction for acceptance of responsibility under the Sentencing Guidelines, but that agreement was contingent on Mr. Rodgers' continued manifestation of acceptance of responsibility. At a change of plea hearing, Mr. Rodgers' testified under oath that he understood the charges against him and the penalties; that he was satisfied with his counsel's performance; and that he was pleading voluntarily, as no threats or promises had been made to induce his plea. The Court accepted Mr. Rodgers' guilty plea.

         Prior to the sentencing hearing, a probation officer prepared a Presentence Report setting forth the calculation of the Sentencing Guidelines. Mr. Rodgers had a base offense level of 20 and also received a 2-level enhancement because the firearm had been reported stolen. The Presentence Report also applied a 4-level enhancement for possessing a firearm in connection with another felony offense. U.S.S.G. § 2K2.1(b)(6)(B). It identified two separate offenses that supported that enhancement: pointing a firearm at Ms. Brown, and distributing controlled substances. Because Mr. Rodgers denied committing those offenses, the Presentence Report also omitted any reduction for acceptance of responsibility. Prior to sentencing, Mr. Rodgers' counsel objected to the Presentence Report, contending that Mr. Rodgers did not possess the firearm in connection with another felony offense and that he was entitled to a reduction for acceptance of responsibility.

         At the sentencing hearing, the Court accepted evidence and argument from both sides on those objections. The government presented the testimony of an officer to corroborate its contention that Mr. Rodgers had been dealing drugs. Mr. Rodgers' counsel cross-examined that officer, whose testimony the Court ultimately declined to rely on. Mr. Rodgers' counsel also submitted exhibits on his behalf, namely letters written to Mr. Rodgers in prison by Ms. Brown in which she expressed her love for him and her frustration about their separation. Counsel argued that the letters showed support for Mr. Rodgers, which he argued was inconsistent with Mr. Rodgers having pointed a firearm at her, as she told officers at the time of his arrest.

         After considering the parties' evidence and arguments, the Court overruled Mr. Rodgers' objections. The Court found that Mr. Rodgers had committed the offense of pointing a firearm, as it found Ms. Brown's multiple statements to officers in the immediate aftermath of the event to be more reliable than Mr. Rodgers' denial or Ms. Brown's later letters of support. The Court also found that Mr. Rodgers possessed the firearm in connection with drug dealing, based on the drugs, paraphernalia, and cash found in his home. Those findings independently justified the four-level enhancement for possessing a firearm in connection with another felony. In addition, because Mr. Rodgers falsely denied that relevant conduct, the Court found that he was not entitled to a reduction for acceptance of responsibility. Mr. Rodgers' guideline sentencing range thus became 92 to 115 months of imprisonment. After hearing from the parties and considering all of the factors under § 3553(a), the Court sentenced Mr. Rodgers to 92 months of imprisonment.

         Mr. Rodgers did not file a notice of appeal. Instead, he filed a motion under § 2255, asking to vacate his conviction and sentence because he received ineffective assistance of counsel. The government filed a response to that motion. In his reply brief, Mr. Rodgers asserted for the first time that his trial counsel was ineffective at sentencing for failing to call Ms. Brown as a witness. He also filed a motion seeking discovery in support of that claim. The Court found that the discovery Mr. Rodgers sought was not appropriate. The Court advised Mr. Rodgers, though, if he believed Ms. Brown would have offered useful testimony at his sentencing hearing, he should submit an affidavit from Ms. Brown explaining the facts that she would have testified to if called as a witness at that hearing. The Court also noted that if he could not do so, Mr. Rodgers should submit his own affidavit specifically identifying the facts to which he believes Ms. Brown would have testified. The Court finally noted that it would appoint counsel to assist Mr. Rodgers in gathering that evidence if he requested. Mr. Rodgers then made that request, which the Court granted. After receiving multiple extensions of time, Mr. Rodgers, who is now represented, did not file any affidavits or other evidence, but both parties have filed supplemental memoranda, so the motion is ripe.


         Section 2255(a) of Title 28 provides that a federal prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255 relief is appropriate only for “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). Relief under § 2255 is extraordinary because it seeks to reopen the criminal process to a person who has already had an opportunity of full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). Upon the filing of a motion, the Court may permit discovery and may direct the parties to expand the record, and the Court must hold a hearing unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b); Rules Governing Section 2255 Proceedings for the United States District Courts R. 6, 7, 8.


         Mr. Rodgers claims that his trial counsel provided ineffective assistance in connection with both his guilty plea and the sentencing hearing. A criminal defendant is entitled to the assistance of counsel for his defense. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 688 (1984). A defendant who was denied the effective assistance of counsel can receive relief under § 2255. To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) that his counsel's performance was deficient, meaning that it fell below an objective standard of reasonableness; and (2) that he was prejudiced by the deficiencies in his counsel's performance, meaning that there is a reasonable probability that the results of the proceeding would have been different with effective representation. Strickland v. Washington, 466 U.S. 687 (1984); Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011); Fuller v. United States, 398 F.3d 644, 650 (7th Cir. 2005). The Court addresses Mr. Rodgers' claims in turn, but begins by addressing the government's threshold argument that the motion is barred by a waiver.

         A. ...

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