Opinion
No. 12-1016-DRH
09-28-2012
UNITED STATES OF AMERICA, Plaintiff, v. KENNEDY M. RUSSELL, SR., Defendant.
ORDER
HERNDON, Chief Judge:
Pending before the Court is defendant's petition under 28 U.S.C. § 2255 to vacate, set aside or correct sentence (Doc. 1). On April 27, 2011, a jury found defendant guilty of willful failure to file income tax returns in violation of 26 U.S.C. § 7203. On September 16, 2011, the Court sentenced him to 27 months imprisonment (Doc. 58) and judgment reflecting the same was entered on September 19, 2011 (Doc. 61). On March 15, 2012, the Seventh Circuit affirmed defendant's sentence and conviction (Doc. 76).
In his § 2255 petition, defendant raises a slew of arguments for relief, all which center around claims of ineffective assistance of counsel. Although defendant did not raise these grounds during his appeal, defendant may proceed on his § 2255 petition if he can show either "cause for the default and actual prejudice as a result of the alleged violation of federal law," or "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991)(emphasis added); see also Edwards v. Carpenter, 529 U.S. 446, 455 (2000).
In Murray v. Carrier, the Supreme Court held that ineffective assistance of counsel may constitute cause. However, "[s]o long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, [466 U.S. 668 (1984),] [there is] no inequity in requiring him to bear the risk of attorney error that results in a procedural default." Murray, 477 U.S. at 488 (emphasis added).
In order to show ineffective assistance of counsel under Strickland, a petitioner must satisfy yet another two pronged test by showing: (1) "counsel's representations fell below an objective standard of reasonableness" (the performance prong); and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (the prejudice prong). Strickland, 466 U.S. at 688, 694. In Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994), the Seventh Circuit held that a § 2255 movant need not demonstrate prejudice when raising an allegation of ineffective assistance of counsel where petitioner's lawyer failed to file a requested direct appeal. Id. at 719.
In his motion, defendant seems to contend that his counsel's performance was below a reasonable standard, and that this caused him to found guilty. In essence, defendant is arguing that but for the grounds raised in his motion, he would have had sufficient counsel, and would likely have been found not guilty.
The Court ORDERS the Government to file a response to petitioner's motion within THIRTY (30) DAYS of the date of this Order. The Government shall, as part of its response, attach all relevant portions of the record
IT IS SO ORDERED.
David R. Herndon
Chief Judge
United States District Court