Armstrong v. United States
| Decision Date | 13 December 2013 |
| Docket Number | NO. 11-3024,11-3024 |
| Parties | ROBERT ARMSTRONG, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Central District of Illinois |
Pending is the Motion of Petitioner Robert A. Armstrong Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence [d/e 1]. The Government has filed a Response to the Motion [d/e 8]. The Petitioner has filed a Reply [d/e 9]. In addition, the Petitioner has filed a Supplement [d/e 13] to his Motion. As directed, the Government filed a Response [d/e 14] and the Defendant filed a Reply [d/e 15].
On November 7, 2007, Petitioner Robert A. Armstrong was charged by Indictment with Possession with Intent to Distribute 5 or more Gramsof Cocaine Base ("crack"), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). See Case No. 3:07-CR-30107
On July 16, 2008, the Petitioner was arrested in the Northern District of Illinois and transferred to the Central District of Illinois. At his Initial Appearance and Arraignment on September 25, 2008, the Petitioner was found indigent and Assistant Federal Public Defender Robert Scherschligt was appointed to represent him. The Petitioner pled not guilty and consented to detention.
On April 22, 2009, the Government filed a Notice of Prior Felony Drug Conviction.
On April 27, 2009, the Petitioner entered an open plea of guilty to the Indictment.
The Presentence Investigation Report classified his base offense level as 24. He was given a three-level reduction for acceptance of responsibility, which yielded a total offense level of 21. Because he had two prior felony convictions for crimes of violence or controlled substance offenses, however, the Petitioner was designated as a career offender, which resulted in a totaloffense level of 37 under U.S.S.G. § 4B1.1(b)(A). After a three-level reduction for acceptance of responsibility, the Petitioner's total offense level was calculated to be 34.
A total offense level of 34 and a criminal history category of VI established a guideline range of 262 to 327 months.
At the sentencing hearing on January 25, 2010, United States District Judge Jeanne E. Scott discussed factors which she determined to warrant a sentence below the applicable guideline range. Judge Scott noted the disparity under the sentencing guidelines between crack and powder cocaine. Judge Scott further determined that because of the age of the Petitioner's armed robbery conviction, which was a predicate to his career offender status, a sentence below the 262 to 327 month range would be appropriate. The Court sentenced the Petitioner to 235 months imprisonment, eight years supervised release and the $100 special assessment. See Doc. No. 30, at 15-18.
On October 25, 2010, the Petitioner sent a letter to the Court which provided that he wanted to file a Notice of Appeal and requesting that anattorney be appointed to represent him for that purpose. The Court construed the letter as a Notice of Appeal and forwarded the document to the United States Court of Appeals for the Seventh Circuit on December 22, 2010.
The Court simultaneously construed the Petitioner's submission as a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 and ordered the Petitioner to supplement his re-characterized motion or file an objection.
On December 30, 2010, the Seventh Circuit directed the Petitioner to file a memorandum by January 13, 2011, stating why his appeal should not be dismissed for lack of jurisdiction due to its untimeliness. On January 21, 2011, that court again ordered the Petitioner to respond regarding why his appeal should not be dismissed for failure to respond to the court's order of December 30, 2010. On February 16, 2011, based on the Petitioner's continued failure to file a response as ordered, the Court directed the United States to file a memorandum addressing the timeliness issue on or before February 25, 2011. The United States filed thejurisdictional memorandum as directed, stating that the appeal should be dismissed for lack of jurisdiction based on the untimeliness of the Petitioner's notice of appeal. On March 9, 2011, the Petitioner's appeal was dismissed as untimely.
The Petitioner's § 2255 Motion and the Supplement thereto are now before the Court.
The first ground raised in the § 2255 petition is ineffective assistance of counsel, based on counsel's alleged failure to file a notice of appeal following sentencing. The Petitioner claims he requested that counsel file a notice of appeal on his behalf.
The Petitioner requests an evidentiary hearing on his ineffective assistance of counsel claim, if the Court does not presume prejudice.
In his Supplement, the Petitioner relies on the United States Supreme Court's decision in DePierre v. United States, 131 S. Ct. 2225 (2011), wherein he claims the Supreme Court announced "a new substantive rule"that applies retroactively to cases on collateral review.
A petitioner asserting an ineffective assistance of counsel claim is entitled to relief only in "extraordinary situations," such as when there is an "error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013). The Sixth Amendment right to the assistance of counsel includes the right to the effective assistance of counsel. See id. at 879.
In order to prevail on an ineffective assistance claim, a petitioner must show that counsel's performance was objectively unreasonable and that such performance prejudiced the petitioner. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. However, the "prejudice" prong of Strickland does not apply when an appellate lawyer either fails to file a brief or does not satisfy the requirements of Anders in seeking leave towithdraw. See Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994).
Ground One of the Petitioner's Motion asserts ineffective assistance of counsel for failure to file a notice of appeal. In support thereof the Petitioner states,
In its Response to the Petitioner's Motion, the Government states it believes it is significant that Petitioner made no mention of this ground for relief in his initial letter to the Court of October 25, 2010, wherein he states:
I (Robert Armstrong) am writing on behalf of my sentence I received on January 25, 2010; which I would like to file a "Notice of Appeal" as well as request that the Courts appoint me an "Appeal Attorney" so that my sentence can be appealed. "My Original Attorney", I feel didn't handle my case within the best interests regarding my sentencing, this in return I feel that received such a unjust sentence. . . . Thank you for your time in this matter.
See Case Number 07-CR-30107, Doc. No. 24. Significantly, the Petitioner does not say that he had previously requested his trial counsel to file anappeal and his attorney failed to do so.
Instead of questioning counsel's alleged failure to file a notice of appeal nine months earlier, the Petitioner instead takes issue with counsel's sentencing strategy. As the Government states, it would seem logical that based on his complaints in the letter about counsel's performance, the Petitioner would have also mentioned that he had asked his attorney to file an appeal and counsel failed to do so.
As part of the record, the Government has filed the Affidavit of Robert Scherschligt, now the Chief Public Defender in Sangamon County, Illinois. Mr. Scherschligt states under oath that Petitioner never instructed him to file an appeal. According to the affidavit, counsel spoke to the Petitioner after the sentence and advised him not to appeal, given that the sentence was 27 months below the low end of the guideline range. Counsel informed the Petitioner that the Court varied based upon the age of one his prior convictions and the crack/powder cocaine disparity under the guidelines. Counsel further explained that because he believed it may have been error for the Court to consider the crack/powder cocaine disparity inthe career offender context as a basis to vary downward, he did not recommend an appeal.
According to his Affidavit, counsel further explained that if the Petitioner were to appeal the sentence, then the Government could decide to cross-appeal the Court's consideration of the crack/powder cocaine disparity, based on contrary authority that has since been overturned. See United States v. Welton, 583 F.3d 494 (7th Cir. 2009), judgment vacated, Welton v. United States, 559 U.S. 1034 (2010). Counsel believed such an act could have resulted in a remand for re-sentencing which potentially could have led to the Petitioner receiving a greater sentence of imprisonment then the original sentence imposed.1 The Petitioner than informed counsel that he did not wish to appeal his sentence.
In Castellanos, the Seventh Circuit joined several other circuits in holding that an attorney's failure to file an appeal upon the client's requestresults in constitutionally ineffective assistance of counsel per se, as it effectively amounts to attorney abandonment. See Castellanos, 26 F.3d at 720. However, in announcing this new rule, the court noted that the petitioner must instruct counsel to appeal. Id. at 719.
The Petitioner's claim that counsel failed to file a notice of appeal upon request...
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