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Mitchell v. United States

United States District Court, W.D. Wisconsin

October 31, 2016


          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Petitioner Raydale Mitchell is currently in custody at the United States Penitentiary in Marion, Illinois. In 2012, appearing before District Judge Barbara Crabb, Mitchell pleaded guilty to distributing heroin in violation of 21 U.S.C. § 841(a)(1). Judge Crabb sentenced Mitchell to 168 months of imprisonment.[1] See United States v. Mitchell, No. 11-cr-83-jdp (W.D. Wis. June 1, 2012), Dkt. 50 and 55.

         Mitchell has filed a motion for postconviction relief under 28 U.S.C. § 2255, alleging that he was denied the effective assistance of counsel in his criminal proceedings. He followed with a motion to amend his petition to include an argument that his sentence under the career-offender sentencing guideline is unconstitutional under theories articulated in Johnson v. United States, 135 S.Ct. 2551 (2015), and United States v. Hurlburt, No. 15-1686, 2016 WL 4506717 (7th Cir. Aug. 29, 2016) (en banc). I will allow Mitchell to amend his petition to include his Johnson claim, but after considering the parties' briefing and the record of the criminal proceedings, I will deny Mitchell's § 2255 petition in all respects.


         Mitchell was indicted in July 2011 for distributing heroin in violation of 21 U.S.C. § 841(a)(1). He was accused of distributing between 700 and 1, 000 grams of heroin in a series of transactions starting in November 2009, to a drug-dealing couple who ended up being recruited by the government as informants. In the last of these transactions, Mitchell recruited his brother to assist in selling heroin to the informant couple in what turned out to be a “controlled buy” orchestrated by law enforcement.

         Mitchell entered a guilty plea. According to the presentence report, Mitchell had two prior convictions for crimes of violence, armed robbery in the Circuit Court for Cook County, Illinois (88CR1639602); and aggravated battery in the Circuit Court for Dane County, Wisconsin (case no. 03CF909). This made him a career offender under United States Sentencing Guidelines § 4B1.1(a) and (b)(3). His offense level was 29, after three levels had been deducted for acceptance of responsibility, and his guideline sentencing range was 151 to 188 months. Alternatively, Mitchell had an identical offense level of 29 based on the amount of heroin involved in the transactions, which placed him at level 30, U.S.S.G. § 2D 1.1 (a)(5) and (c)(5), minus the three-level decrease for acceptance of responsibility, plus two levels for his role as an organizer, U.S.S.G. § 3B 1.1(c). District Judge Barbara Crabb sentenced Mitchell to a within-guideline term of 168 months. Mitchell appealed his sentence, but counsel concluded that the appeal was frivolous and moved to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). The court of appeals denied the appeal after considering Mitchell's and counsel's briefing. United States v. Mitchell, 525 F. App'x 479 (7th Cir. 2013).


         To obtain relief under 28 U.S.C. § 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 § 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)). An evidentiary hearing is not required if “the motion and files and records of the case conclusively show that the petitioner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Menzer v. United States, 200 F.3d 1000, 1006 (7th Cir. 2000).

         I conclude that no hearing is necessary because the record makes clear that none of Mitchell's arguments have any merit. Mitchell raises several claims for relief, mostly premised on the ineffectiveness of his counsel. Claims for ineffective assistance of counsel are analyzed under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under the Strickland standard, a petitioner must demonstrate both constitutionally deficient performance by counsel and actual prejudice as a result of the alleged deficiency. See Williams v. Taylor, 529 U.S. 390, 390-91 (2000).

         Much of Mitchell's brief-in-chief sets forth conclusory statements about counsel's overall ineffectiveness. Mitchell generally contends that counsel “failed to present a reasonable defense strategy” and conduct proper discovery. But these statements, on their own, are too vague to provide grounds for relief, because they are unsupported by an explanation of what counsel should have done differently or how the outcome of his case would have been different with effective counsel. It is Mitchell's burden to provide “sufficiently precise information, that is, a comprehensive showing as to what the [allegedly inadequate] investigation would have produced.” Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003) (internal quotation omitted). I will turn to address the arguments Mitchell raises that he supports with some explanation about the nature of the alleged deficient attorney performance and how it harmed him. None of his arguments persuade me that his conviction or sentence should be vacated.

         A. Plea

         One of the main thrusts of Mitchell's brief-in-chief is that counsel did not “negotiate a reasonable plea, ” and she pushed Mitchell into accepting a plea even though he did not fully understand it. Mitchell states that counsel promised him that he would get no more than a 10-year sentence if he pleaded guilty, and failed to inform him that he would be subject to the career-offender guidelines and that he was giving up the opportunity to attack the credibility of the informants who told law enforcement about his heroin dealing.

         All Mitchell brings in support of this claim are his bare assertions that counsel promised him no more than a 10-year sentence and that he did not know he was giving up his right to confront the informants. But these assertions are belied by the record, which shows that Mitchell signed a proposed plea agreement stating that the maximum penalty for his offense was 20 years, and that he “should not rely upon the possibility of a particular sentence based upon any sentencing discussions between defense counsel and the United States.” Dkt. 25 in the '83 criminal case, at 1-2. He later confirmed, under oath, at the plea hearing, that he understood that Judge Crabb could sentence him to a maximum of 20 years of imprisonment, that no one made a promise with him to get him to plead guilty, and that he did not have any reason to expect a particular sentence. Dkt. 56 in the '83 criminal case, at 5, 10-11. Likewise, in the plea agreement and at the plea hearing, Mitchell stated that he understood he was giving up the right to confront witnesses against him. Dkt. 25 in the '83 criminal case, at 2; Dkt. 56 in the '83 criminal case, at 7.

         Mitchell's bare assertions contradicting the record of the plea “may be rejected out of hand unless the defendant has a compelling explanation for the contradiction.” United States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005); see also Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010) (“When a district court conducts a Rule 11 colloquy, it is not putting on a show for the defendant, the public, or anybody else. The purpose of a Rule 11 colloquy is to expose coercion or mistake, and the district judge must be able to rely on the defendant's sworn testimony at that hearing.”) (internal quotations omitted). See also Key v. United States, 806 F.2d 133, 138-40 (7th Cir. 1986) (allegation that counsel made promises to defendant must be supported by allegations specifying terms of alleged promises, when, where. and by whom such promises were made, and precise identity of any witnesses to promise; even these allegations ...

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