Duplessis v. United States

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ANDREW M. DUPLESSIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 21-cv-00095-JPG

United States District Court, S.D. Illinois

February 28, 2022

MEMORANDUM AND ORDER

J PHIL GILBERT DISTRICT JUDGE

This matter is before the Court on petitioner Andrew M Duplessis' (“Petitioner” or “Duplessis”) Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. On August 21, 2019. Petitioner pled guilty to one count of possession with intent to distribute methamphetamine. On January 30 2020, the Court sentenced him to serve 216 months in prison on Count 1 for possession with intent to distribute methamphetamine. He did not appeal his conviction. Duplessis' criminal Case No. is 19-cr-40047-JPG.^[1]

I. Background

In June 2019, a grand jury issued an indictment for Duplessis for Possession with intent to distribute methamphetamine (Crim. Doc. 1). Attorney Robert Elovitz (“Mr. Elovitz”) was appointed to represent Duplessis. Duplessis notified the Court that his final pre-trial would be converted into a change of plea hearing on August 21, 2019. Duplessis pled guilty, in an open plea, on that date and sentencing was scheduled for November 26, 2019 (Crim. Doc. 20). During that hearing, Duplessis, under oath, stated he was fully satisfied with counsel and representation by Mr. Elovitz. (Crim. Doc. 60, p. 4). Additionally, in the colloquy regarding the sentencing guidelines, Duplessis stated him, and his attorney spoke about the Federal Sentencing Guidelines and the 18 U.S.C. 3553(a) factors. Id. at 7. Additionally, when asked about the “rough” guideline calculation, Mr. Elovitz stated “Defendant's criminal history comes into play greatly in this instance.” Id. at 8. Additionally, Mr. Elovitz stated:

The Government has provided two sets of incidents that may affect his relevant conduct, so that the actual potential base offense levels can vary by, in his case, I think -- the Government and I have talked on the methamphetamine issue -- can vary as much as six levels and potentially with other relevant conduct they have disclosed in another report, but we could be at a difference of four levels additional, so we could have a ten-level swing either way at sentencing. It's quite an open range, Judge.

Id. The Court asked if Duplessis understood that he will be able to review the presentence report and make objections to the report. Id. Duplessis stated he understood. Id. at 8-9.

A pre-sentence investigation report (“PSR”) was issued on October 21, 2019 (“Initial PSR”). (Crim. Doc. 21). Duplessis had fourteen days to object, which counsel for Duplessis filed on November 4, 2019 (Crim. Doc. 22). The Initial PSR determined Duplessis' relevant conduct involved 2.7 kilograms methamphetamine in the form of “ice, ” recommended two-level firearm enhancement, three-level reduction for acceptance of responsibility, Offense Level 35, and Criminal History Category II. Id. The guideline range was 188-235 months, the statutory maximum term was 20 years. Id.

The Government moved to strike Duplessis' objections. Duplessis objected, stated his relevant conduct was “far below” 2.7 kilograms and objected to the firearm enhancement, stating he never was in possession of handguns “during the time frame in question.” (Crim. Doc. 22). Duplessis also objected to each paragraph with the exception of two paragraphs that amounted to actually involved amounts of ice seized from Duplessis upon his arrest. Id. The Government moved to strike the objections, which this Court denied (Crim. Doc. 23, 35).

On December 13, 2019, the Addendum to the Initial PSR was issued (Crim. Doc. 32). The Addendum, issued by U.S. Probation, asserted information and calculations in the Initial PSR were accurate. Id.

Mr. Elovitz sought continuation of the sentencing hearing. The Government conducted additional interviews in response to Duplessis' relevant conduct and firearm objections. (Doc. 17, p. 8). As a result of these interviews, on January 27, 2020, Probation issued a revised presentence report (“Revised PSR”), whereby the relevant conduct increased from 2.7 kilograms to 3.28 kilograms. (Crim. Doc. 46). The Revised PSR continued to apply the two-level firearm enhancement. Id.

During sentencing on January 30, 2020, the Court asked Duplessis if he received the Revised PSR, which he stated he had. (Crim. Doc. 61, p. 3). When asked about the objections to the PSR, Mr. Elovitz stated “Defendant would announce…he's going to withdraw the objections as to the weight of the sentence in question for relevant conduct purposes.” Id. at 4. When the Court asked Duplessis if that was correct and Duplessis stated “Yes, your Honor.” Duplessis was still objecting to the firearm enhancement. Id. at 5. On January 30, 2020, the second revised PSR (“Second Revised PSR”) was issued, which corrected the date/year on the fact page and changed “581.175 ounces” to “581.175 grams” in paragraph 15. (Crim. Doc. 47).

The Government called three witnesses and introduced letters that Duplessis sent to two of the witnesses while incarcerated. In one letter attached to the Government's response, Duplessis threatened witness John Reed regarding his cooperation with the Government. (Doc. 17, Exh. C p. 8). Upon consideration of the witnesses and evidence provided, the Court found the firearm enhancement applicable not only “by a preponderance of the evidence, but the evidence is overwhelming that this Defendant was known to possess firearms during drug transactions even though he didn't show it every time, but it was there.” (Crim. Doc. 61, p. 48-49). Additionally, the Court noted that the letters and threats were “inconsistent with acceptance of responsibility.” Id. at 61. The Court stated it was not going to be taking two points back for acceptance of responsibility but noted it for the record. The Court, in consideration of all the 3553(a) factors, sentenced Duplessis to 216 months in prison. Id. at 63.

II. § 2255 Motion

In his timely motion, Petitioner raises the following claims of constitutionally ineffective assistance of counsel Robert Elovitz in violation of his Sixth Amendment rights:

1) Attorney Robert Elovitz provided ineffective assistance of counsel by failing to advise petitioner that his sentence could be based on additional “ghost dope” and a firearm enhancement;

2) Attorney Elovitz provided ineffective assistance of counsel by failing to object to the alleged due process violation, specifically, the fact that Duplessis was denied due process because the Revised PSR was not “timely” disclosed.

Additionally, Petitioner also makes a due process claim. Petitioner states he was denied due process because the Revised PSR was not “timely” disclosed.

Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings for the United States District Courts, the Court has determined that it is plain from the motion and the record of the prior proceedings that Petitioner is not entitled to relief.

III. Analysis

a. Sixth Amendment

The Court must grant a § 2255 motion when a petitioner's “sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). However, “[r]elief under § 2255 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.'” United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). It is proper to deny a § 2255 motion without an evidentiary hearing if “the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see Shipman v. United States, 925 F.3d 938, 943 (7th Cir. 2019).

Duplessis asserts violations of his Sixth Amendment rights. The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for [his] defence.” U.S. Const. amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). A party claiming ineffective assistance of counsel bears the burden of showing (1) that his 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); Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014); United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009).

In a case where a petitioner pled guilty as a result of alleged ineffective assistance of counsel, to satisfy the first prong of the Strickland test, the petitioner must show that his counsel's advice leading to the plea was outside the range of professionally competent assistance. Hill v Lockhart, 474 U.S. 52, 56-57 (1985) (citing McMann, 397 U.S. at 771; Tollett v. Henderson, 411 U.S. 258, 267 (1973)). To satisfy the second Strickland prong, he must show that there is a reasonable probability that, but for his counsel's deficient performance, he would not have entered a guilty plea and instead would have gone to trial. Lee v. United States, 137 S.Ct. 1958, 1965 (2017); Hill, 474 U.S. at 59; United States v. Parker, 609 F.3d 891, 894 (7th Cir. 2010); Wyatt, 574 F.3d at 458; Richardson v. United States, 379 F.3d 485, 487 (7th Cir. 2004). Counsel's deficient performance must have been a decisive factor in the defendant's decision to enter a guilty plea. Wyatt, 574 F.3d at 458; see Julian v. Bartley, 495 F.3d...