United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
March 11, 2016, Deshon Adams entered a plea of guilty to one
count of possession of a firearm by a felon in violation of
18 U.S.C. §§ 922(g) and 924(a)(2). On June 30,
2016, the court imposed a within-guideline sentence of 87
months. Adams appealed, claiming that the court had
impermissibly considered unreliable evidence linking him to
seven unsolved shootings when weighing the sentencing
factors. The Court of Appeals rejected Adams' argument
and affirmed the court's sentencing determination.
United States v. Adams, 879 F.3d 826 (7th Cir.
2018). On January 14, 2019, Adams filed a motion to vacate
and/or correct his sentence pursuant to 28 U.S.C. §
to Rule 4 of the Rules Governing § 2255 Proceedings, I
must give the case prompt initial examination:
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
Attorney to file an answer, motion, or other response within
a fixed time, or take other action the judge may order.
Rule 4, Rules Governing § 2255 Proceedings.
asserts two separate claims in his § 2255 motion. He
first claims that he is entitled to relief because his
attorney gave him erroneous advice concerning the sentence
range he was facing under the United States Sentencing
Guidelines. Adams notes that his attorney estimated that the
sentence range under the Guidelines would be 50 to 71 months
when it turned out the range was between 70 and 87 months.
Had he known he was facing a higher guideline range, Adams
argues, he would not have entered a guilty plea. Adams also
claims that he does not qualify as a felon because his
battery by a prisoner conviction does not constitute a crime
of violence. Based on these assertions, Adams requests that
the court void the plea agreement as the product of deficient
counsel and allow him the option to proceed to trial or
receive a sentence promised in the plea agreement. Neither
claim has sufficient merit to proceed.
support a claim for ineffective assistance of counsel, a
petitioner must prove both the objectively deficient
performance of his counsel and prejudice. Strickland v.
Washington, 466 U.S. 668 (1984). First, a petitioner
must identify specific acts or omissions of counsel that
“fell below an objective standard of
reasonableness.” Id. at 687. In this
competence inquiry, “judicial scrutiny of counsel's
performance must be highly deferential” and
“every effort [must] be made to eliminate the
distorting effects of hindsight . . . and to evaluate the
conduct from counsel's perspective at the time.”
Id. at 689. Second, the petitioner must
“affirmatively prove prejudice, ” by showing to
“a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 693. A reasonable
probability is a probability “sufficient to undermine
confidence in the outcome.” Id. at 695.
claim of ineffective assistance of counsel is belied by the
written plea agreement and the transcript of the plea
colloquy. It is clear from the plea agreement and the
colloquy that no one-neither his attorney, nor the
court-promised Adams what the sentence range would be or that
he would receive a sentence within that range. During the
plea colloquy, the court asked the attorneys what their
estimate of the sentence range under the Guidelines was.
Adams' attorney thought it would be around 71 months, and
the government estimated the sentence range to be between 57
and 71 months. Plea Transcript, ECF No. 33, at 8. The court
explicitly advised Adams, as the written plea agreement did,
that these were the attorneys' estimates and they were
not binding on the court. The court instructed Adams that it
would make its own determination of what the sentence range
is under the Guidelines. Id. at 9. The written plea
agreement conveyed the same warning. Plea Agreement, ECF No.
11, ¶ 21. It turned out that the disposition of one of
Adams' juvenile offenses scored two points in the
criminal history calculation, and his criminal history
category was thereby increased from IV to V. But this could
not have been a surprise to Adams, as the court had warned
Adams there was no guarantee what his sentence range would be
under the Guidelines or that he would receive a guideline
well established that rendering an erroneous opinion on a
Guideline calculation does not establish ineffective
assistance of counsel. See United States v.
Martinez, 169 F.3d 1049, 1053 (7th Cir. 1999) (“A
defense attorney cannot promise his client a particular
sentence; all he can do is make a prediction.”). While
it is true that “some predictions are such gross
mischaracterizations that they provide a ‘strong
indication of [constitutionally] deficient performance,
'” Id. (quoting Iaea v.
Sunn, 800 F.2d 861, 865 (9th Cir.1986)), a “mere
inaccurate prediction” does not amount to a
constitutional violation. Id.; see also United
States v. Barnes, 83 F.3d 934, 940 (7th Cir. 1991)
(“We have previously held that an attorney's
‘mere inaccurate prediction' of a sentence,
standing alone, does not demonstrate the deficient
performance component of a claim of ineffective assistance of
counsel.”). This is especially the case where, as here,
the defendant is expressly told that “the sentencing
court will make its own determinations regarding any and all
issues relating to the imposition of sentence and may impose
any sentence authorized by law up to the maximum penalties
[allowed by law].” ECF No. 11, ¶ 21.
acknowledged all of the above under oath in the course of the
plea colloquy, Adams may not now claim ineffective assistance
by denying what he was explicitly told. “The
representations of the defendant at a plea hearing constitute
a formidable barrier in any subsequent collateral
proceedings. Solemn declarations in open court carry a strong
presumption of verity.” Blackledge v. Allison,
431 U.S. 63, 74 (1977) (internal quotations and citations
omitted); see also United States v. Peterson, 414
F.3d 825, 827 (7th Cir. 2005) (“Judges need not let
litigants contradict themselves so readily; a motion that can
succeed only if the defendant committed perjury at the plea
proceedings may be rejected out of hand unless the defendant
has a compelling explanation for the contradiction.”).
Here, the fact that neither attorney correctly estimated
Adams' criminal history is not the kind of mistake that
undermines the voluntariness of his plea, especially since he
was told the guideline estimates of the attorneys were just
that-estimates. Adams' claim of ineffective assistance of
counsel therefore fails.
second claim-that he was not a felon-likewise fails. Adams
acknowledged as part of the plea agreement, and in the course
of the plea colloquy, that he had previously been convicted
of battery by a prisoner at the time he possessed a firearm.
According to the Presentence Report, Adams was convicted of
battery by a prisoner for beating up another juvenile inmate
at the Racine County Juvenile Detention Center on January 7,
2012, when he was sixteen years old. Though initially given a
nine-month jail term as a condition of probation, his
probation was later revoked and he was sentenced to two years
by a prisoner is a felony punishable by up to six years in
prison under Wisconsin law. Wis.Stat. §§ 940.20(1),
939.50(3)(h). Wisconsin courts have held that a juvenile
confined in a juvenile detention facility is a prisoner
within the meaning of the state law. In Interest of
C.D.M., 125 Wis.2d 170, 370 N.W.2d 287 (Ct. App. 1985).
The Wisconsin Juvenile Court apparently waived jurisdiction
over Adams for the offense and he was charged and convicted
as an adult. He thus had a prior felony conviction at the
time of the instant offense. Although Adams contends his
crime was not a violent felony, that is irrelevant for
purposes of his conviction under 18 U.S.C. § 922(g)(1).
It is his felony conviction that rendered his possession of a
firearm unlawful. Accordingly, this claim also fails.
reasons set forth above, Adams' motion for relief
under 28 U.S.C. § 2255 is summarily denied, and the
Clerk is directed to enter judgment dismissing this
action. There remains, however, the question of
whether a certificate of appealability should issue.
§ 2255 petitioner may not proceed on appeal without a
certificate of appealability. 28 U.S.C. § 2253(c)(1);
see Ouska v. Cahill-Masching, 246 F.3d 1036, 1045
(7th Cir. 2001). A certificate of appealability may issue
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see Tennard v. Dretke, 542 U.S.
274, 282 (2004); Ouska, 246 F.3d at 1045. To make
such a showing, the petitioner must “demonstrate that
reasonable jurists could debate whether [the] challenge in
[the] habeas petition should have been resolved in a
different manner or that the issue presented was adequate to
deserve encouragement to proceed further.”
Ouska, 246 F.3d at 1046; accord Tennard,
542 U.S. at 282; Slack v. McDaniel, 529 U.S. 473,
484 (2000) (certificate of appealability should issue if the
petitioner demonstrates “that reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong”). The court
finds that no reasonable jurist could debate that Adams'
motion for relief under § 2255 should be resolved
differently or that the issues presented are adequate to
deserve encouragement to proceed further. Accordingly, the