Nelson v. United States

JEFFERY NELSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 19-cv-3110

United States District Court, C.D. Illinois, Springfield Division

July 1, 2021

ORDER AND OPINION

SUE E MYERSCOUGH, U.S. District Judge:

Now before the Court is Petitioner Jeffery Nelson's Motion to Vacate Sentence Under 28 U.S.C. § 2255 (d/e 3). In his Motion, he claims that his defense counsel was ineffective for recommending that he plead guilty without challenging the application of the 21 U.S.C. § 851 sentencing enhancement. For the reasons explained below, the Court finds Mr. Nelson is entitled to an evidentiary hearing on his claim of ineffective assistance of counsel.

I. BACKGROUND

On June 6, 2017, a grand jury in the District Court for the Central District of Illinois returned an indictment charging Mr. 3:19-cv-03110-SEM # 24 Page 2 of 17 Nelson with one-count of knowingly and intentionally distributing 28 grams or more of a mixture of substances containing a detectable amount of cocaine base (crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). See Indictment, United States v. Nelson, Case No. 17-cr-30033 (C.D. Ill.), d/e (hereinafter, “CR”) 1. On October 3, 2017, the Government filed an Information pursuant to 21 U.S.C. § 851, stating that Mr. Nelson's prior conviction for manufacture/delivery of a controlled substance, in Sangamon County, Illinois Circuit Court, Case No. 2002-CF-115, qualified Mr. Nelson for a sentencing enhancement because it was a “felony drug offense.” See Information, CR.24. Due to the Information, Mr. Nelson's statutory mandatory minimum sentence was enhanced from five to ten years' imprisonment, and his maximum sentence was enhanced from forty years' to life imprisonment. See 21 U.S.C. § 841(b)(1)(B).

On October 24, 2017, Mr. Nelson pled guilty to the Indictment pursuant to a written plea agreement. See Plea Agreement, CR.25; October 24, 2017 Minute Entry. In the plea agreement, he expressly waived his right to collateral review, including his right to attack his conviction pursuant to 28 U.S.C. § 2255. Plea Agreement ¶¶ 19-20, CR.25. However, the waiver “does not apply to a claim of ineffective assistance of counsel.” Id. Mr. Nelson also acknowledged and agreed “that the effect of this waiver is to completely waive any and all rights and ability to appeal or collaterally attack any issues relating to the defendant's conviction and to the defendant's sentence so long as the sentence is within the maximum provided in the statutes of conviction, excepting only those claims which relate directly to the negotiation of this waiver itself.” Id. In exchange for pleading guilty, the Government agreed to recommend a sentence at the low-end of the applicable Sentencing Guideline range. Id. ¶16.

The United States Probation Office prepared a revised Presentence Investigation Report. PSR, CR.47. The PSR calculated Mr. Nelson's total offense level as 21 and his criminal history category as VI. PSR ¶¶29, 52. Accordingly, his advisory Sentencing Guidelines range was 77 to 96 months' imprisonment. PSR ¶98. However, because of the ten-year statutory mandatory minimum sentence, his Sentencing Guidelines range became 120 months' imprisonment. Id. The PSR also provided further detail regarding Mr. Nelson's 2002 offense for manufacture/delivery of a controlled substance, in Sangamon County, Illinois Circuit Court, Case No. 2002-CF-115, and indicated he was charged with intent to deliver more than 1 gram but less than 15 grams of a substance containing cocaine. PSR ¶38.

On April 9, 2018, the Court sentenced Mr. Nelson to 120 months' imprisonment, followed by an eight-year term of supervised release. See Judgment, CR.56. Mr. Nelson did not appeal.

On April 25, 2019, Mr. Nelson filed the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (d/e 3).^[1] Nelson argues that he should not have been subject to the § 851 enhancement because his predicate offense does not qualify as a “felony drug offense.”^[2] He argues that his defense counsel violated his Sixth Amendment right to effective assistance of counsel by advising Mr. Nelson to plead guilty without challenging the enhancement. The Government filed its response (d/e 20) on February 26, 2021, arguing that Mr. Nelson's challenge is barred by his plea agreement, and that his claims of ineffective assistance of counsel should be denied because his counsel's performance was not deficient. Mr. Nelson filed a reply (d/e 23) on April 6, 2021.

II. LEGAL STANDARD

Section 2255, “the federal prisoner's substitute for habeas corpus, ” Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012), permits a prisoner incarcerated pursuant to an Act of Congress to request that his sentence be vacated, set aside, or corrected if “the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . 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 § 2255 is appropriate 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) (quotation marks omitted).

A § 2255 motion is not a substitute for a direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir. 1995), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). Federal prisoners may not use § 2255 as a vehicle to circumvent decisions made by the appellate court in a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Doe, 51 F.3d at 698. Accordingly, a petitioner bringing a § 2255 motion is barred from raising: (1) issues raised on direct appeal, absent some showing of new evidence or changed circumstances; (2) nonconstitutional issues that could have been but were not raised on direct appeal; or (3) constitutional issues that were not raised on direct appeal, absent a showing of cause for the default and actual prejudice from the failure to appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717, 710-20 (7th Cir. 1994). “[I]t is generally proper to raise arguments of ineffective assistance of counsel for the first time on collateral review in a § 2255 petition because such claims usually. . . involve evidence outside the record.” Galbraith v. United States, 313 F.3d 1001, 1007 (7th Cir. 2002).

III. DISCUSSION

A. Mr. Nelson's Claim is Not Barred By the Collateral Attack Waiver in His Plea Agreement.

When Mr. Nelson pled guilty, he received concessions from Government, including the Government's agreement that they would recommend a sentence at the low end of the Sentencing Guidelines. As part of the exchange for these concessions, Mr. Nelson waived the right to collaterally attack his sentence. Because the right to collaterally attack a conviction or sentence is a statutory creation, it “can be waived.” United States v. Wilkozek, 822 F.3d 364, 367 (7th Cir. 2016). Moreover, “[i]t is well-settled that waivers of direct and collateral review in plea agreements are generally enforceable.” Hurlow v. United States, 726 F.3d 958, 964 (7th Cir. 2013); see Oliver v. United States, 951 F.3d 841, 846 (7th Cir. 2020) (“Finality matters in plea agreements, especially when the parties have negotiated for it expressly.”).

In his § 2255 Motion and in his reply, however, Mr. Nelson does not appear to be pursuing a stand-alone claim that the application of the § 851 sentencing enhancement was erroneous. Rather, Mr. Nelson's claim is founded on his Sixth Amendment right to counsel. Such a claim was expressly excluded from the collateral attack wavier. See Plea Agreement ¶¶ 19-20, CR. 25. Accordingly, the Court finds that Mr. Nelson's claim of ineffective assistance of counsel is not barred by the collateral attack waiver in his plea agreement.

B. Mr. Nelson is Entitled to An Evidentiary Hearing on His Claim of Ineffective Assistance of Counsel.

Mr. Nelson claims defense counsel was ineffective in negotiating his plea agreement and in advising him to plead guilty because counsel should have challenged the application of the § 851 enhancement. The Sixth Amendment guarantees criminal defendants effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86 (1984). Under Strickland's familiar two-part test, Mr. Nelson must show both that his attorney's performance was deficient and that he was prejudiced as a result. Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015). Courts, however, must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 690. A petitioner must also prove that he has been prejudiced by his counsel's representation by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

The Sixth Amendment right to counsel applies during plea negotiations. Bridges v. United States, 991 F.3d 793, 803 (7th Cir. 2021). “In the plea bargaining context, a reasonably competent lawyer must attempt to learn all of the relevant facts of the case, make an estimate of the likely sentence, and communicate the results of that analysis to the client before allowing the client to plead guilty.” Brock-Miller v. United States, 887 F.3d 298, 308 (7th Cir. 2018) (internal citations omitted).

1. Mr. Nelson has Demonstrated Prejudice.

The Court finds that Nelson has shown prejudice, and the Government has not argued...