United States v. Pugh

1

UNITED STATES OF AMERICA, Plaintiff-Respondent, v. WALLACE PUGH, Defendant-Petitioner.

No. 2:14-cr-20075-SLD

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

May 8, 2023

ORDER

SARA DARROW CHIEF UNITED STATES DISTRICT JUDGE

Before the Court are Defendant-Petitioner Wallace Pugh's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Pro Se 2255 Motion”), ECF No. 26, counseled Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (“Counseled 2255 Motion”), ECF No. 30, and counseled motion for a status conference, ECF No. 34. For the reasons that follow, the Counseled 2255 Motion is DENIED, and the remaining motions are MOOT.

BACKGROUND

In December 2014, a grand jury indicted Pugh on one count of possessing 28 or more grams of a mixture and substance containing cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Indictment, ECF No. 1. Assistant Federal Public Defender Elisabeth Pollock was appointed to represent him. See Dec. 9, 2014 Min. Entry.

On April 8, 2015, the Government filed a notice pursuant to 21 U.S.C. § 851 indicating that it intended to rely on two of Pugh's prior convictions to subject him to a sentencing enhancement. Not. Prior Convictions, ECF No. 10. On April 29, 2015, Pugh entered a plea of guilty pursuant to a written plea agreement. Apr. 29, 2015 Min. Entry; Plea Agreement, ECF No. 11. As part of the plea agreement, he waived his rights to appeal and to file a collateral attack on his sentence or conviction except for claims of ineffective assistance of counsel. Plea Agreement ¶¶ 24-26. Pugh's plea was accepted on May 19 2015. Order Approving Magistrate Judge Recommendation, ECF No. 16.

The United States Probation Office prepared a presentence investigation report (“PSR”) in advance of sentencing. PSR, ECF No. 18. USPO indicated that Pugh was a career offender, id. ¶ 21, and listed his total offense level as 34 after acceptance of responsibility id. ¶¶ 22-24. With a criminal history category of VI, id. ¶ 45, his Sentencing Guidelines range for imprisonment was 262 to 327 months id. ¶ 77. He was subject to a ten-year mandatory minimum under 21 U.S.C. § 841(b)(1)(B) due to his prior felony convictions. Id. ¶ 76. He was subject to a mandatory minimum eight-year term of supervised release. Id. ¶ 79. Pugh did not object to the PSR. Id. at 22.

United States District Judge Colin Bruce, who was then presiding over the case, sentenced Pugh to 204 months of imprisonment based in part on the Government's motion under § 5K1.1 of the Sentencing Guidelines. See Sept. 14, 2015 Min. Entry; Statement of Reasons 2, ECF No. 24. Pugh did not appeal.

In May 2020, Pugh filed the Pro Se 2255 Motion, in which he argued that Judge Bruce violated 28 U.S.C. § 455 by failing to recuse from his case and that Judge Bruce presiding over his case violated his due process rights. Pro Se 2255 Mot. 5-6. These claims are based on ex parte communications between Judge Bruce and the United States Attorney's Office for the Central District of Illinois (“USAO”) that came to light in 2018. See United States v. Atwood, 941 F.3d 883, 884-85 (7th Cir. 2019) (providing a brief explanation of the discovery and disclosure of the communications). Judge Bruce recused himself from hearing Pugh's motion, and the case was reassigned to this Court. May 6, 2020 Text Order of Recusal.

The Court appointed counsel to represent Pugh with respect to the Pro Se 2255 Motion. May 6, 2020 Text Order. On October 1, 2020, counsel filed the Counseled 2255 Motion, mooting the Pro Se 2255 Motion. See Counseled 2255 Mot. 1.^[1] Counsel reasserted the claims made in the Pro Se 2255 Motion, see id. at 1-2, 12-13, and added a claim that the Federal Public Defender's office (“FPD”) provided Pugh with ineffective assistance of counsel by failing to include claims based on Judge Bruce's ex parte communications in Pugh's appeal and by failing to obtain agreements with the Government to toll the time for Pugh to bring his claims, id. at 23-24.

The Government filed its response on February 1, 2021. Resp., ECF No. 33. It argues that Pugh cannot show that Judge Bruce was actually biased against him, that Pugh's “nonconstitutional appearance of bias claim is not a proper basis for relief in a § 2255 proceedings,” that Pugh's “allegations should be dismissed because he waived his right to collaterally attack his sentence and conviction as part of his plea agreement,” that Pugh procedurally defaulted his § 455(a) claim, that the § 455(a) claim is untimely, that the ineffective assistance of counsel claims are meritless, and that the “Court must examine its own jurisdiction to determine if [Pugh] can even proceed on the present motion without approval from the Seventh Circuit.” Id. at 25-26.

No reply was filed, though Pugh later filed a motion for a status conference.

DISCUSSION

I. Legal Standard

A prisoner in federal custody may move the court that imposed his sentence to vacate, set aside, or correct it. 28 U.S.C. § 2255(a). “[R]elief 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). Accordingly, such 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)).

II. Analysis

The Court first addresses the Government's jurisdiction and waiver arguments as those apply to more than one of Pugh's claims and then addresses each of Pugh's claims and any defenses specific to those claims separately.

A. Jurisdiction

“A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain” either

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). A district court lacks jurisdiction to consider a successive § 2255 motion unless the petitioner first obtains authorization from the court of appeals to file the motion. See Burton v. Stewart, 549 U.S. 147, 152 (2007); Phillips v. United States, 668 F.3d 433, 436 (7th Cir. 2012).

Pugh filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in 2017^[2] arguing that he should not have been considered a career offender. See Pet. Writ Habeas Corpus 8 (Doc. 1). Judge Joe Billy McDade denied Pugh's motion. Apr. 25, 2017 Order 1 (Doc. 10). Judge McDade determined that the petition was barred by the collateral review waiver in Pugh's plea agreement, id. at 5, and alternatively that Pugh could not “utilize § 2241 as an end run around § 2255,” id. at 6. He also held that Pugh's claim failed on the merits. Id. at 7-8.

Courts sometimes treat motions filed by prisoners as motions under § 2255 even if they are not labeled as motions under § 2255. See Castro v. United States, 540 U.S. 375, 377 (2003). For example, the Seventh Circuit has explained that “a postconviction motion that is functionally, substantively, a motion under section 2255 (the federal prisoner's habeas corpus substitute) should be treated as such, even if labeled differently.” Henderson v. United States, 264 F.3d 709, 710 (7th Cir. 2001). But the Supreme Court has held that a

court cannot . . . recharacterize a pro se litigant's motion as the litigant's first § 2255 motion unless the court informs the litigant of its intent to recharacterize, warns the litigant that the recharacterization will subject subsequent § 2255 motions to the law's “second or successive” restrictions, and provides the litigant with an opportunity to withdraw, or to amend, the filing.

Castro, 540 U.S. at 377. “Where these things are not done, a recharacterized motion will not count as a § 2255 motion for purposes of applying § 2255's ‘second or successive' provision.” Id. The Government argues that Pugh's petition may have qualified as a § 2255 motion, Resp. 28, but that “[i]t is unclear from the record if [Pugh] received [the required] admonition,” id. at 28-29. It also argues that it “would be an abuse of the system, and subvert the purpose” of requiring a warning “to treat this as anything other than a subsequent or successive § 2255 under the circumstances.” id. at 29.

Nothing in the docket of the § 2241 petition indicates that Judge McDade recharacterized the petition as a § 2255 motion or gave Pugh the required warning and an opportunity to withdraw or amend the petition. It is true that Judge McDade found that Pugh could not bring a motion under § 2241 because the remedy under § 2255 was not “inadequate or ineffective to test the legality of his detention.” Apr. 25, 2017 Order 3, 5-6 (quoting 28 U.S.C. § 2255(e)). But he did not recharacterize the petition as a § 2255 motion; instead, he denied the petition as barred by the collateral review waiver and by § 2255(e) and also addressed the claim on its merits id. at 5-8. If a motion that is recharacterized as a § 2255 motion but without the proper warnings cannot count as a § 2255 motion for purposes of the second or successive rule, then a motion for which the warnings were never given and that was never...