Burgard v. United States
| Decision Date | 21 January 2016 |
| Docket Number | Criminal Case No. 10-cr-30085-DRH,Civil Case No. 13-cv-450-DRH |
| Parties | JOSHUA BURGARD, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of Illinois |
I. Introduction
This matter is before the Court on petitioner Joshua Burgard's motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). In his § 2255 petition, Burgard brings an array of arguments seeking relief, all of which are centered on claims of ineffective assistance of counsel. Burgard essentially claims that his attorneys were ineffective at both the sentencing and appeal of his criminal case. The government filed its response in opposition of Burgard's § 2255 petition (Doc. 4). Thereafter, petitioner sought leave to amend his petition (Doc. 9), to which the government opposed (Doc. 11). For the following reasons, petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is denied1.II. Background
On May 19, 2010, a grand jury returned a two-count indictment charging that on or between December 1, 2009, and January 30, 2010, Joshua Burgard knowingly received and attempted to receive visual depictions of minors engaging in sexually explicit conduct (United States v. Burgard, 10-cr-30085-DRH2, (Doc. 39) (Doc. 1)). On February 18, 2011, pursuant to Title 18, United States Code, Section 2252(a)(2), Burgard entered a conditional plea of guilty to counts 1 and 2 of the indictment before Magistrate Judge Stephen C. Williams (Cr. Doc. 39). His conditional plea reserved his right to appeal the order denying the motion to suppress evidence found on his cell phone. On April 4, 2011, the Court sentenced Burgard to 210 months on each of counts 1 and 2, to run concurrently (Cr. Doc. 47). On direct appeal, Burgard challenged only this Court's denial of his motion to suppress the photographs found on his phone. The Seventh Circuit affirmed the denial and thus the judgment of the Court. See United States v. Burgard, 675 F.3d 1029 (7th Cir. 2012).
Thereafter Burgard filed a collateral attack on his sentence pursuant to 28 U.S.C. § 2255, in which he raises various claims of ineffective assistance of counsel. Specifically, Burgard argues that his trial and appellate counsel were ineffective because (1) both counsel failed to argue that the district courted erred in applying an enhancement to his base offense level, (2) both counsel failed to argue that the district court erred in applying a cross reference that increased his base offense level, (3) his appellate counsel failed to argue that the district court erred in treating the sentencing guideline as presumptively reasonable, (4) his trial counsel advised him against addressing the court at sentencing, and (5) his trial counsel told him that he would receive a lesser sentence if he pled guilty. Additionally, following the Seventh Circuit's decision in United States v. Harden, 758 F.3d 886 (7th Cir. 2014), Burgard sought leave to amend his §2255 petition to include a Harden claim (Doc. 9).
III. Law
A prisoner may move to vacate, set aside or correct his sentence if he claims "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).
"[R]elief under § 2255 is an extraordinary remedy because it asks the district court to essentially 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). Thus, relief under Section 2255 is "reserved forextraordinary situations," Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993)), and "is available when a '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 allowed 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).
Therefore, unless a movant demonstrates changed circumstances in fact or law, he may not raise issues already decided on direct appeal. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). Further, a petitioner cannot raise constitutional issues that he could have, but did not directly appeal, unless he shows good cause for, and actual prejudice from, his failure to raise them on appeal, or unless failure to consider the claim would result in a fundamental miscarriage of justice. Bousley v. United States, 523 U.S. 614, 622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000). Likewise, a Section 2255 motion cannot pursue non-constitutional issues that were not raised on direct appeal regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The only way such issues could be heard in the Section 2255 context is if the alleged error of law represents "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979).
Burgard raises various claims alleging ineffective assistance of counsel. Because claims of ineffective assistance of counsel usually involve evidenceoutside of the trial record, such claims may be brought for the first time in a Section 2255 motion. See Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. James, 635 F.3d 909, 916 (7th Cir.2011). A petitioner bears a heavy burden to establish ineffective assistance of counsel. United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995). These claims are evaluated under the two-prong Strickland test. McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir. 2007)(citing Strickland v. Washington, 466 U.S. 688, 690, 694 (1984)).
In order to succeed on an ineffective assistance of counsel claim under Strickland, a petitioner must demonstrate (1) his attorney's performance "fell below an objective standard of reasonableness," and (2) that counsel's deficient performance prejudiced the petitioner in such a way that, but for counsel's errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 695 (1984). The Court is not required to analyze both the performance and prejudice prong, because the failure to satisfy either prong is fatal to the claim. Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993); United States v. Slaughter, 900 F.2d 1119, 1124 (7th Cir. 1990).
To satisfy the first prong, "the Court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. "The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011). Tosatisfy the second prong, a petitioner must demonstrate to a "reasonable probability" that without the unprofessional errors, the outcome of the proceeding would have been different. McElvaney v. Pollard, 735 F.3d 528, 533 (7th Cir. 2013). A district court's analysis begins with a "strong presumption that the defendant's attorney rendered adequate representation of his client." United States v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000). Thus, a petitioner must overcome a heavy burden to prove that his attorney was constitutionally deficient. Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006). In order to establish that counsel's performance was deficient, the defendant must show errors so serious that "counsel was not functioning as the 'counsel' guaranteed to the defendant by the Sixth Amendment." Atkins v. Zenk, 667 F.3d 939, 944 (7th Cir. 2012).
IV. Argument
The Court must first address petitioner's pending motion to amend his Section 2255 petition (Doc. 9). Specifically, Burgard seeks to amend his petition to include an argument that his conviction should be vacated because his plea was improperly taken by a United States Magistrate Judge. Specifically, Burgard seeks to add an argument that United States Magistrate Judge who took his plea lacked statutory authority to take felony guilty pleas, based on the Seventh Circuit's decision in United States v. Harden. 758 F.3d 886 (7th Cir.2014). Thegovernment opposes such an amendment arguing that Burgard's untimely motion to amend his § 2255 should be denied.
A district court may properly deny a motion for leave to amend "when there is undue delay, bad faith, dilatory motive, undue prejudice to the opposing party, or when the amendment would be futile." Bethany Pharmacal, Inc. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir.2001)(emphasis added); Johnson v. United States, 196 F.3d 802, 805-06 (7th Cir.1999). Failure to raise an issue available at the time of appeal, forfeits the claim during a future collateral attack. See 28 U.S.C. § 2255; 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 (7th Cir.1997)(A Section 2255 petition cannot raise nonconsitutional issues that could have been but were not raised on direct appeal); Barnickel v. United States, 113 F.3d 704, 706 (7th Cir.1997)("Nonconstitutional claims like this one, which could have been raised on direct appeal but were not, are deemed waived even without taking cause and prejudice into account.").
Although the Seventh Circuit Court of Appeals has recognized Section 2255 as the proper vehicle for bringing Burgard's Harden claim, opposed to his previously denied motion to withdraw his guilty plea, filed...
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