Rule v. United States

1

Demone Rule, Petitioner, v. United States of America, Respondent.

No. 19-cv-8361

United States District Court, N.D. Illinois, Eastern Division

January 25, 2023

MEMORANDUM OPINION AND ORDER

JOHN ROBERT BLAKEY UNITED STATES DISTRICT JUDGE

On June 28, 2017, a jury found petitioner Demone Rule guilty of being a felon in possession of a handgun in violation of 18 U.S.C § 922(g). At sentencing, this Court found Petitioner subject to the Armed Career Criminal Act (ACCA) sentencing enhancement and sentenced Petitioner to 235 months imprisonment. Petitioner now asks this Court to vacate, set aside, or correct his sentence or to grant an evidentiary rehearing pursuant to 28 U.S.C. § 2255.

In his request, Petitioner alleges that his trial counsel provided ineffective assistance at sentencing because she failed to challenge the use of his conviction for cocaine delivery, in violation of 720 Ill. Comp. Stat. 570.0/401-C-1, as a qualifier for his Armed Career Criminal (ACC) status. He also alleges that counsel provided ineffective assistance on appeal because she did not challenge the use of his cocaine delivery conviction as an ACC qualifier and failed to move for a stay in light of Rehaif v. United States, 139 S.Ct. 2191 (2019); further, Petitioner contends that he is entitled to vacatur because the government failed to meet Rehaif's scienter requirements. For the reasons explained below, this Court denies Petitioner's motion [1] and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c).

I. BACKGROUND

In June 2016, the Grand Jury charged Petitioner with a single count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e)(1). See United States v. Rule, No. 16-cr-00420, 2017 WL 3158873, at *1 (N.D. Ill. July 25, 2017), aff'd, 744 Fed.Appx. 960 (7th Cir. 2018).^[1]

After a three-day trial, a jury found Defendant guilty of the charged offense. Id. The presentence investigation report and the government's sentencing memorandum both noted that Petitioner previously had been convicted of: (1) delivery of a controlled substance (heroin) (No. 97-cr-1426101); (2) possession of a controlled substance (cocaine) with intent to deliver within 1000 feet of a school (No. 13-cr-1335901); and (3) a violent felony(attempted first degree murder) (No. 97-cr-1284001). [14] at 2-3; Rule, No. 16-cr-00420, [69], [71].

Petitioner, in his sentencing memorandum, challenged the use of his attempted murder conviction as an ACC qualifier. [14] at 4; Rule, No. 16-cr-00420, [72]. But he did not challenge the use of his remaining two prior convictions- delivery of heroin and possession of cocaine, respectively-for this purpose. [14] at 4; Rule, No. 16-cr-00420, [72]. Petitioner argues that defense counsel failed to “follow his ‘express instruction' not to challenge” the use of his Illinois attempted murder conviction as an ACC qualifier and to “instead challenge his 1998 Manufacture/Delivery of Cocaine prior conviction.” [1] at 4.

At sentencing, this Court found that Petitioner qualified for the ACC sentencing enhancement based upon the three prior convictions and sentenced Petitioner to 235 months imprisonment. [14] at 5; Rule, No. 16-cr-00420 [89] at 12:15-13:15. Before imposing sentence, this Court overruled Petitioner's objection to the use of his attempted murder conviction as an ACC qualifier. [14] at 4-5; Rule, No. 16-cr-00420 [89] at 12:15-13:15.

Petitioner subsequently appealed his sentence. Rule, 744 Fed. App'x at 960. On appeal, Petitioner's “sole contention” was that “his Guidelines range was miscalculated” because “Illinois attempted murder is not categorically a ‘violent felony'” under the Armed Career Criminal Act's (ACCA) “‘elements' clause.” Rule, 744 Fed. App'x at 960-61. Again, Petitioner contends that defense counsel ignored his instruction to “raise the meritorious issue of his” Illinois cocaine delivery conviction “being . . . precluded from” use “as a predicate offense for purposes of the” ACCA. [1] at 8.

The Seventh Circuit affirmed the sentence imposed by this Court, concluding that “because the element of attempted use of physical force makes a felony violent under the ACCA, attempted Illinois murder is also a violent felony.” Rule, 744 Fed. App'x at 961. The United States Supreme Court denied certiorari in April 2019. Rule v. United States, 139 S.Ct.1588, 1588 (2019). On December 16, 2019, Petitioner filed his § 2255 petition before this Court. [1].

In July 2020, the Seventh Circuit held that an Illinois cocaine delivery conviction was not a “felony drug offense” for the purpose of 21 U.S.C. § 841(b)(1)(C)'s sentencing enhancement because the Illinois statute criminalizing cocaine delivery covered a larger swath of conduct than its federal counterpart, the Controlled Substance Act. United States v. Ruth, 966 F.3d 642, 647-48 (7th Cir. 2020), cert. denied, 141 S.Ct. 1239 (2021). Like § 841(b)(1)(C), the ACCA incorporates the Controlled Substances Act's schedules of controlled substances to define a “serious drug offense” predicate. 18 U.S.C. § 924(e)(2). Accordingly, under Ruth, Illinois cocaine delivery convictions are not “serious drug offenses” within the meaning of the ACCA.

II. LEGAL STANDARD

Relief granted under § 2255 is “an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). This relief “is available only when the ‘sentence was imposed in violation of the Constitution or laws of the United States,' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). A § 2255 motion is not a substitute for a direct criminal appeal. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007).

Additionally, “a district court need not grant an evidentiary hearing in all § 2255 cases.” Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015). When “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief,” no evidentiary hearing is required. Id. (quoting 28 U.S.C. § 2255). If, however, a habeas petitioner “alleges facts that, if proven, would entitle him to relief, the district court must grant an evidentiary hearing. Id. (quoting Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006)).

III. ANALYSIS

A. Ineffective Assistance of Counsel

When a habeas petitioner claims ineffective assistance of counsel in violation of the Sixth Amendment, courts assess counsel's performance using the two-prong test developed in Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., Vinyard v. United States, 804 F.3d 1218, 1224-28 (7th Cir. 2015). To prevail under Strickland, a petitioner must show: (1) “that his attorney's performance was deficient”; and (2) “that he was prejudiced as a result.” Id. at 1224-25 (applying Strickland). Failure to satisfy either prong of the Strickland test defeats an ineffectiveness claim. See Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014).

1. Assistance at Sentencing

a. Deficient Performance

To satisfy the first prong-deficient performance-a petitioner must show that his attorney's performance “fell below an objective standard of reasonableness” when measured against “prevailing professional norms.” Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008).

This analysis is “highly deferential” with a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Vinyard, 804 F.3d at 1225 (quoting Strickland, 466 U.S. at 689). When an attorney's decision is a matter of trial strategy, this Court may not “second-guess counsel's judgment and replace it with our own.” United States v. Lathrop, 634 F.3d 931, 937 (7th Cir. 2011).

i. Failure to Follow Petitioner's Instructions

Petitioner alleges that he has met “the deficient prong in Strickland” because his attorney failed “to follow the Petitioner's express instructions to challenge his May 5, 1998 manufacture/delivery of cocaine prior Illinois drug conviction” as an ACC qualifier, choosing instead to challenge Petitioner's Illinois attempted murder conviction. [1] at 7. But even assuming that Petitioner did, in fact, give “express instruction” to his attorney as alleged, the decision to disregard such instruction does not render counsel's performance deficient.

Petitioner's constitutional right to effective counsel does not include the “right to be represented by an attorney who shares the defendant's belief” as to the best strategy before the trial court. United States v. Taylor, 128 F.3d 1105, 1108 (7th Cir. 1997). Although a significant dispute about strategy may, under circumstances not present here, “implicate a defendant's right to counsel of choice,” such a dispute does not constitute “deficient performance under the test for ineffective assistance of counsel.” Carlson v. Jess, 526 F.3d 1018, 1027 (7th Cir. 2008). Accordingly, the mere disagreement between Petitioner and his counsel about the grounds for challenging ACC status does not establish ineffective assistance.

Likewise Petitioner does not allege (nor can he show) that his attorney's decision fell outside “the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 690. Even though Petitioner suggests that Seventh Circuit precedent foreclosed counsel's attempt to challenge his attempted murder conviction as an ACC qualifier, [1] at 2-4, counsel appropriately acknowledged the Seventh Circuit decisions on this issue and...