United States District Court, W.D. Wisconsin
CHARLES A. EVANS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
Charles A. Evans is a federal prisoner at the United States
Penitentiary, McCreary, Kentucky. Following a plea of guilty
in March 2015, Evans was convicted of distributing heroin in
violation of 21 U.S.C. § 841(a)(1). I sentenced Evans to
12 years of prison and three years of supervised release.
United States v. Evans, No. 14-cr-108-1, Dkt. 53
(W.D. Wis. May 29, 2015).
now pro se, seeks to vacate the conviction and sentence under
28 U.S.C. § 2255, claiming ineffective assistance of
counsel. Dkt. 1. I directed the government to respond.
I've reviewed the parties submissions, and I conclude
that Evans fails to establish that he was prejudiced by his
counsel's performance or that he is otherwise entitled to
relief. I will deny his motion.
and Tiana Williams sold heroin in Beloit, Wisconsin, in 2014,
often out of Williams's apartment. In August 2014, Evans
tried to collect a $3, 500 debt from one of his regular drug
customers, J.J. When J.J. didn't pay, Evans beat him and
broke his jaw. J.J. told his probation officer about this,
leading to Evans's detention in jail on a probation hold.
While in jail, Evans called Williams asking her to convince
J.J. to change his story.
October 2014, Evans and Williams were charged in a six-count
indictment. Evans pleaded guilty to one count of distributing
heroin, in violation of 21 U.S.C. § 841(a)(1); the
remaining counts were dismissed.
22, 2015, I sentenced Evans. As part of the plea agreement,
Evans acknowledged that the distribution involved between 100
and 400 grams of heroin, yielding a base offense level of 24.
I applied a two-level enhancement for maintaining a drug
house under U.S. Sentencing Guidelines Manual §
2D1.1(b)(12) over Evans's counsel's objection. I
applied a two-level enhancement for using violence under
§ 2D 1.1 (b)(2). Evans's counsel had initially
objected to this enhancement, but he later withdrew his
objection. And I applied a two-level enhancement for
obstruction of justice under § 3C1.1 over Evans's
counsel's objection. Evans's counsel asked that I
nevertheless apply a two-level downward adjustment for
accepting responsibility under § 3E1.1; I declined to do
so. These adjustments yielded a total offense level of 30
which, paired with Evans's criminal history category of
VI, resulted in a guidelines range of 168 to 210 months of
imprisonment. After considering the factors in 18 U.S.C.
§ 3553(a), I sentenced Evans to a below-guidelines
sentence of 144 months in prison and three years of
appealed to the Seventh Circuit, which affirmed his
conviction and sentence. United States v. Evans, No.
15-2287 (7th Cir. June 20, 2016).
motion for relief under 28 U.S.C. § 2255 invokes
"an extraordinary remedy because it asks the district
court essentially to reopen the criminal process to a person
who already has had an opportunity for full process."
Almonacid v. United States, 476 F.3d 518, 520 (7th
Cir. 2007). To prevail, Evans must show that his
"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.
asserts three ineffective-assistance claims, none of which
were raised on direct appeal. Ordinarily, issues that were
not raised on direct appeal may not be litigated in a §
2255 motion, but this rule does not apply to allegations of
ineffective counsel. Vinyard v. United States, 804
F.3d 1218, 1227 (7th Cir. 2015). This is primarily because
the trial record is rarely developed with an eye toward
litigating such a claim and the record does not reflect
actions that take place outside the courtroom. Id.
So Evans did not procedurally default on the claims he
prevail on a claim of ineffective assistance of counsel under
the Sixth Amendment, Evans must demonstrate that his
counsel's performance was constitutionally deficient and
that it caused him actual prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To be
constitutionally deficient, counsel's performance must
have been objectively unreasonable. Id. Actual
prejudice requires "a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at
first contends that he received ineffective assistance
because his counsel failed to move to suppress evidence. He
claims that co-defendant Williams successfully moved to
suppress certain evidence that was "illegally
seized" and that he told his counsel that he wished to
file a similar motion, but his counsel refused. Dkt. 1, at 4.
To prevail on this claim, Evans must show that the motion to
suppress would have been meritorious. See Long v. United
States,847 F.3d 916, 920 (7th Cir. 2017). But Evans has
offered no reason why a motion to suppress would have
succeeded-he does not even identify the basis for such a