Taylor v. United States, Case No. 15-cv-0319-MJR

• Decision Date: 25 November 2015
• Docket Number: Case No. 15-cv-0319-MJR
• Parties: ANTHONY MONTEZ TAYLOR, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Illinois

ANTHONY MONTEZ TAYLOR, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Case No. 15-cv-0319-MJR

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

November 25, 2015

(Related Case: 12-cr-30090-MJR)

ORDER ON PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. 2255

REAGAN, Chief Judge:

A. Introduction and Procedural History

In March 2013, the undersigned sentenced Anthony Montez Taylor in Case No. 12-cr-30090. Now before this Court is Taylor's March 2015 petition to vacate, set aside, or correct that sentence under 28 U.S.C. 2255. An overview of the key facts and findings from the underlying criminal case aids resolution of Taylor's petition.

On March 5, 2012, two Fairmont City (Illinois) police officers conducted a weekly "business check" at the First Western Inn on Collinsville Road. While walking the hallways and corridors of the motel, the officers detected a strong odor of burnt cannabis near Room 221. The officers conducted a "knock and talk" at Room 221.¹ Taylor opened the door of Room 221, the officers remained in the exterior hallway, andTaylor stood in (or at one point just outside) the doorway to his room. Taylor said that his girlfriend, Brittany Lavington, was in the room. At the hearing on the suppression motion, accounts of the sequence of events differed somewhat between Lavington, Defendant Taylor, another occupant of the motel (Byron Blackwell, the guest in Room 218), and the two officers.

Lavington admitted that she retrieved a green glass pipe from her coat pocket in Room 221, gave the pipe to the officers outside the door of the room, and declared that it was the only illegal item in the room. Lavington also admitted that she had, in fact, been smoking "weed" just prior to the knock on the door that night. Asked by the officers if there was any more marijuana in the room, Taylor responded that "it was all smoked up." Taylor denied repeated requests from the officers for consent to search Room 221 for other drugs or drug paraphernalia. The officers persisted in requesting consent to search. Taylor continued to refuse.

Ultimately, when told that the officers would secure the room while they obtained a search warrant, Taylor consented to the search. (This Court concluded that Taylor consented; Taylor denies ever consenting.) The search took only a couple of minutes. One officer observed a razor blade with white residue on a sink counter, an open box of baking soda, and a black coat hanging on the coat rack next to the sink. Three white rocklike substances were located in the left front pocket of the coat. When the rocks were found, Taylor stated, "Ah, shit, that's cocaine" and admitted that it was his. Taylor was arrested, handcuffed, and taken to the police station. At the station,Taylor declined a request to provide a statement regarding the substance seized from his pocket (which later tested positive as cocaine base).

Indicted for possessing crack cocaine with the intent to distribute it in violation of 21 U.S.C. 841(a)(1), Taylor moved to suppress the cocaine and the statements he made identifying the substance as cocaine and admitting the cocaine was his. Taylor argued that the search itself was illegal - supported by neither warrant nor consent - and that the statements were the fruit of the illegal search. An evidentiary hearing was held over the course of two days in September 2012.

On October 16, 2012, the undersigned denied Taylor's motion to suppress. Represented in this District Court by Assistant Federal Public Defender G. Ethan Skaggs, Taylor pled guilty, reserving the right to appeal the suppression ruling. Taylor was represented on appeal by Jonathan Hawley and Peter Henderson, who challenged this Court's denial of the suppression motion.

The United States Court of Appeals for the Seventh Circuit affirmed the conviction, finding that this Court had an adequate basis on which to conclude that Taylor consented to the search. United States v. Taylor, 549 Fed. Appx. 562 (7^th Cir. 2013). The United States Supreme Court denied Taylor's petition for writ of certiorari on May 27, 2014. Taylor v. United States, 134 S. Ct. 2689 (2014).

On March 23, 2015, Taylor filed in this District Court a pro se petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. The Court conducted prompt threshold review of the petition under Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts and set a briefing schedule.Before the United States of America responded, Taylor moved to amend his § 2255 petition. The Court permitted the amendment, conducted threshold review of the amended petition, and identified the arguments presented as follows (Doc. 7, p. 3; emphasis in original).

(A) Whether Petitioner received ineffective assistance of counsel in this Court, based on his attorney's investigation of the issues supporting - and argument at the hearing on the motion for - suppression of evidence; and

(B) Whether this Court erred in determining Petitioner's sentence by a preponderance of the evidence standard or in counting Petitioner's prior offenses when calculating his criminal history.

The amended petition ripened with Taylor's filing of an October 26, 2015 reply.² In a separate motion filed that day, Taylor (a) asks the Court to appoint him counsel under 18 U.S.C. 3006A in light of the recent Supreme Court decision in United States v. Johnson, -- U.S. -- , 135 S. Ct. 2251 (2015), which declared unconstitutional the residual clause of the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B)(ii), and (b) presents a third claim for § 2255 relief (based on Johnson).

"The court should grant an evidentiary hearing on a § 2255 motion when the petitioner 'alleges facts that, if proven, would entitle him to relief.'" Sandoval v. United States, 574 F.3d 847, 850 (7^th Cir. 2009), citing Hall v. United States, 371 F.3d 969, 972 (7^th Cir. 2004), and 28 U.S.C. 2255(b). A hearing may be needed, for instance, if thepetition alleges ineffective assistance and the record is factually insufficient to explain counsel's actions. Osagiede v. United States, 543 F.3d 399, 408 (7^th Cir. 2008).

Having carefully reviewed the petition and briefs, the Court concludes that an evidentiary hearing is not needed as to the issues set forth in Taylor's amended petition. Those issues can be resolved on the existing record, which conclusively demonstrates that Taylor is not entitled to § 2255 relief on those grounds. See Rule 8(a) of RULES GOVERNING SECTION 2255 PROCEEDINGS; Almonacid v. United States, 476 F.3d 518, 521 (7^th Cir.), cert. denied, 551 U.S. 1132 (2007); Gallo-Vasquez v. U.S., 402 F.3d 793, 797 (7^th Cir. 2005).

As to the Johnson-based argument raised by Taylor in his October 26, 2015 motion (Doc. 15), the Court believes that appointment of counsel for Petitioner Taylor is appropriate and additional briefing by counsel is warranted, after which the undersigned will assess whether an evidentiary hearing should be set.

For the reasons explained below, the Court DENIES Taylor's petition to vacate, set aside, or correct sentence (Doc. 8) and RESERVES RULING (and orders briefing) on the supplemental § 2255 claim based on Johnson and presented in the October 26, 2015 motion (part of Doc. 15).

B. Applicable Legal Standards

28 U.S.C. 2255 is the vehicle by which a person in custody under a sentence issued by a federal court asserts that his sentence was imposed in violation of the Constitution or laws of the United States, the court did not have jurisdiction to impose the sentence, or the sentence is otherwise subject to collateral attack.

Relief under 28 U.S.C. 2255 is limited. Unlike a direct appeal, in which a defendant may complain of nearly any error, § 2255 may be used only to correct errors that vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude.

The United States Court of Appeals for the Seventh Circuit has emphasized that relief under § 2255 "is available only in extraordinary situations," requiring an error of constitutional or jurisdictional magnitude or a fundamental defect that resulted in a complete miscarriage of justice. Blake v. United States, 723 F.3d 870, 879 (7^th Cir. 2013), cert. denied, 134 S. Ct. 2830 (2014). Accord Harris v. United States, 366 F.3d 593, 594 (7^th Cir. 2004) (Section 2255 relief is appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect that inherently resulted in a complete miscarriage of justice); Barnickel v. United States, 113 F.3d 704, 705 (7^th Cir. 1997) (2255 petitioner must demonstrate the alleged error is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice"); Prewitt v. United States, 83 F.3d 812, 816 (7^th Cir. 1996) ("relief under 28 U.S.C. § 2255 is reserved for extraordinary situations"). So, for instance, an error in calculating the advisory Sentencing Guidelines range typically is not cognizable in a § 2255 petition. United States v. Coleman, 763 F.3d 706, 708 (7^th Cir. 2014), citing Welch v. United States, 604 F.3d 408, 412 (7^th Cir. 2010), and Hawkins v. United States, 706 F.3d 820 (7^th Cir. 2013).

Section 2255 cannot be used as a substitute for a direct appeal or, pertinent to the case at bar, to re-litigate issues decided on direct appeal. See United States v. Fleming,676 F.3d 621, 625 (7^th Cir. 2012); Coleman v. United States, 318 F.3d 754, 760 (7^th Cir.), cert. denied, 540 U.S. 926 (2003); Sandoval, 574 F.3d at 850; White v. United States, 371 F.3d 900, 902 (7^th Cir. 2004).

The Seventh Circuit explained nearly twenty years ago in McCleese v. United States, 75 F.3d 1174, 1178 (7^th Cir. 1996):

A § 2255 motion is "neither a recapitulation of nor a substitute for a direct appeal." Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992). As a result, constitutional errors not raised on direct appeal may not be raised in

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