United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
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.
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.
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'
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
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.
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.
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.
STANDARD OF REVIEW
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.
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.