United States District Court, W.D. Wisconsin
Bailey, Petitioner, Pro Se.
States of America, Respondent, represented by Meredith P.
Duchemin, United States Attorney's Office.
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge.
Ernest Bailey has filed a motion under 28 U.S.C. Â§ 2255 to
vacate, set aside or correct the sentence that he received on
December 9, 2011, in United States v. Bailey, Case
No. 12-cr-69-wmc. The respondent has filed a brief in
opposition. After considering all of the pleadings, and based
on this court's own recollection of the underlying
proceedings, the motion will be denied for the reasons set
forth briefly below.
29, 2012, Ernest Bailey robbed the Dane County Credit Union
at gunpoint. During the robbery, Bailey pointed the gun at
several bank tellers while demanding money. Another credit
union employee located elsewhere in the bank, observed the
robbery via a live feed from surveillance cameras, and
promptly notified police, who apprehended Bailey as he
attempted to leave the scene. Upon Bailey's arrest,
officers recovered a pistol and $8000 in proceeds from the
thereafter, a grand jury in the Western District of Wisconsin
returned a three-count indictment against Bailey, charging
him with: (1) bank robbery by force and threats of violence
in violation of 18 U.S.C. Â§ 2113(a) and (d); (2) brandishing
a firearm during and in relation to a crime of violence in
violation of 18 U.S.C. Â§ 924(c); and (3) unlawfully
possessing a firearm as a felon in violation of 18 U.S.C. Â§
the armed robbery was committed, Bailey was on probation for
three, separate state court felony convictions. Bailey's
probation was subsequently revoked in each state case. On
August 20, 2012, Bailey was sentenced to a total of seven
years' imprisonment in those cases.
October 9, 2012, Bailey entered a guilty plea to counts one
and two of the indictment against him in this court. Under
the terms of a written plea agreement, Bailey acknowledged
that the bank robbery charges in count one carried a maximum
penalty of 25 years in prison and that the charge for
brandishing a firearm during a crime of violence in count two
carried a mandatory minimum penalty of seven years (84
months) in prison, to be served consecutively to any sentence
imposed on count one.
sentencing memorandum, Bailey's defense counsel argued
for a total sentence of no more than 85 months in prison,
running concurrently with his undischarged state term of
imprisonment. She also sent a letter to the probation
officer, urging that his federal sentence be ordered to run
concurrently with the remainder of Bailey's undischarged
state term of imprisonment. The court sentenced Bailey to a
term of 30 months' imprisonment on count one, running
concurrently with his undischarged state court sentence. As
to count two of the indictment, however, the court sentenced
him to serve a term of 84 months in prison to run
consecutively to the term imposed in count one, but
concurrently with the undischarged state term of
imprisonment. There were no objections to the sentence and
Bailey did not pursue a direct appeal.
judgment was entered, the Bureau of Prisons modified the
sentence, noting that, as a matter of law, the mandatory
minimum sentence imposed on count two could not be served
concurrently with "any other term of
imprisonment[.]" 18 U.S.C. Â§ 924(c)(1)(D)(ii). Arguing
that this modification has lengthened the amount of time he
will spend in prison, Bailey now contends that he is entitled
to relief pursuant to 28 U.S.C. Â§ 2255, because he was denied
effective assistance of counsel in connection with his guilty
plea. In particular, Bailey contends that he was incorrectly
told by his defense counsel that the sentence he received on
count two of the indictment could run concurrent to his
undischarged state court sentence. But for this erroneous
advice, Bailey further contends that he would not have
accepted the proposed plea agreement in this case, and he
would not have pled guilty to counts one and two of the
obtain relief under 28 U.S.C. Â§ 2255, a prisoner must show
that the district court sentenced him "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 that it is otherwise subject to collateral
attack." Relief under Â§ 2255 is appropriate only for an
error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in
a complete miscarriage of justice.'" Harris v.
United States, 366 F.3d 593, 594 (7th Cir. 2004)
(quoting Borre v. United States, 940 F.2d 215, 217
(7th Cir. 1991)).
Bailey contends that he is entitled to relief pursuant to Â§
2255 because his defense counsel gave him incorrect advice
about his potential sentence on count two of the indictment.
"Before deciding whether to plead guilty, a defendant is
entitled to the effective assistance of competent
counsel.'" Padilla v. Kentucky, 559 U.S.
356, 364 (2010) (quoting McMann v. Richardson, 397
U.S. 759, 771 (1970) (citation omitted)). Claims for
ineffective assistance ...