IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

THOMAS CUNNINGHAM,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Case No. 12 C 3508

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is a Motion to Vacate, Set Aside or Correct

Judgment filed by Petitioner Thomas Cunningham pursuant to 28

U.S.C. § 2255. For the reasons stated herein, the Motion is

denied.

I. BACKGROUND

On October 10, 2007, Petitioner was indicted on a charge of

bank robbery. Petitioner was represented by appointed counsel

until a conflict of interest arose in April 2008, which prompted

counsel to move to withdraw. The motion was granted and a new

attorney was appointed, but before the new attorney could file an

appearance, Petitioner made an oral motion to terminate the new

attorney so that he could proceed pro se. Petitioner represented

himself until August 20, 2008, when the Court appointed Ronald

Clark to represent Petitioner. Mr. Clark stayed with Petitioner

through his trial and sentencing hearing. 
On December 16, 2009, a jury found Petitioner guilty of one

count of bank robbery under 18 U.S.C. § 2113(a). Because the Court

concluded that Petitioner qualified as a career offender,

Petitioner’s guideline range was for a term of imprisonment of 210

to 240 months. But the Court found that the career offender

classification overstated Petitioner’s criminal history, and

therefore the Court imposed a sentence of 180 months of

imprisonment and three years of supervised release. 

Petitioner filed a Notice of Appeal on August 28, 2009, and

the Seventh Circuit appointed an attorney to represent him. After

reviewing the trial court record and finding only frivolous claims,

appellate counsel moved to withdraw under Anders v. California, 386

U.S. 738 (1967). On September 9, 2010, the Seventh Circuit granted

the Motion to Withdraw and dismissed Petitioner’s appeal. United

States v. Cunningham, 393 F. App’x 403, 408 (7th Cir. 2010). The

United States Supreme Court denied certiorari on May 16, 2011. 

Cunningham v. United States, 131 S.Ct. 2471 (2011).

The Motion to Vacate, filed timely on May 8, 2012, raises

substantive due process and ineffective assistance of counsel

claims. First, Petitioner argues that he was beaten by a prison

guard after he requested to read a law book before his trial. 

Next, Petitioner contends that his trial counsel was ineffective

because trial counsel failed “to communicate any further [plea]

negotiations on Petitioner’s behalf.” Motion at 24. Finally,

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Petitioner claims that his appellate counsel provided ineffective

assistance in three ways: (1) by concluding in her Anders brief

that Petitioner could not raise a meritorious ex post facto

challenge, (2) by failing to raise a significant and obvious change

in governing Seventh Circuit precedent, and (3) by filing an Anders

brief arguing the case against Petitioner. 

II. LEGAL STANDARD

Prisoners in federal custody may challenge their conviction or

sentence by filing a motion with “the court which imposed the

sentence” arguing that the “sentence was imposed in violation of

the Constitution or laws of the United States.” 28 U.S.C. § 2255. 

Relief under § 2255 is an “extraordinary remedy” because the

petitioner already has “had an opportunity for full process.” 

Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).

III. DISCUSSION

A. Pre-trial Assault

Petitioner alleges that he was assaulted by a correctional

officer after he requested to read a law book before his trial. It

is unclear how this alleged event contributed to or affected

Petitioner’s conviction or sentence. Because this beating was

inflicted by a Government officer, Petitioner argues, the

Government punished him before he was convicted. Regardless of

whether he might prevail in a separate suit for damages or

injunctive relief based on this claim – indeed, Petitioner already

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has commenced a separate Bivens action – Petitioner has not argued

that the alleged assault entitles him to have his conviction or

sentence vacated or modified. Nor could he, as there is no

indication that the alleged beating affected any of the proceedings

before this Court. Accordingly, this claim is not cognizable under

§ 2255. Barnickel v. United States, 113 F.3d 704, 706 (7th Cir.

1997) (explaining that § 2255 is available only where the

petitioner challenges the fact that he is “in custody”).

B. Ineffective Assistance of Counsel

To demonstrate that counsel was ineffective, a habeas

petitioner must establish that “counsel’s representation fell below

an objective standard of reasonableness” and that he suffered

prejudice as a result. Strickland v. Washington, 466 U.S. 668, 688

(1984). “The Strickland test is highly deferential to counsel,

presuming reasonable judgment and declining to second guess

strategic choices.” United States v. Williams, 106 F.3d 1362, 1367

(7th Cir. 1997). 

1. Trial Counsel

Petitioner contends that Mr. Clark, who represented him from

August 20, 2008 through sentencing in September 2009, provided

ineffective assistance during plea negotiations. Petitioner was

offered a plea deal on July 30, 2008, when he was proceeding pro

se. Mr. Cark began representing petitioner three weeks later. At

that point, the plea deal was still available but had not been

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accepted, and the case was set for trial. The plea deal was never

withdrawn, and there is no evidence of any other plea negotiations. 

To establish that he was prejudiced by counsel’s allegedly

ineffective assistance, Petitioner must show “through objective

evidence” that “there is a reasonable probably that he would have

accepted the alleged proposed plea agreement absent defense

counsel’s advice.” Paters v. United States, 159 F.3d 1043, 1046

(7th Cir. 1998). Here, Petitioner received the offer before he was

represented by Mr. Clark. The plea offer was available and never

withdrawn. These facts belie Petitioner’s contention that he would

have accepted the deal if not for counsel’s advice. But even if

they did not, there is no indication that any “objective evidence”

exists that could demonstrate that Petitioner would have accepted

the deal. Accordingly, the Court determines, without evaluating

counsel’s performance and without the need for an evidentiary

hearing, that any errors did not prejudice Petitioner. United

States v. Taylor, 569 F.3d 742, 748 (7th Cir. 2009) (“Courts may

deny ineffective assistance of counsel claims for lack of prejudice

without ever considering the question of counsel’s actual

performance.”).

2. Appellate Counsel

Petitioner raises several issues related to the Anders brief

filed by his appointed appellate counsel. When assisting a

convicted defendant with his criminal appeal, appointed counsel may

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move to withdraw by filing an Anders brief that “advise[s] the

court of what points he might have raised and why he thinks they

would have been frivolous.” United States v. Edwards, 777 F.2d

364, 365 (7th Cir. 1985) (citing Anders v. California, 386 U.S.

738, 744 (1967)). Although “counsel must consistently serve the

client’s interest to the best of his or her ability,” McCoy v.

Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 438 (1988),

counsel also is “honor-bound” to advise the court “if he believes

in good faith that there are no [non-frivolous] arguments that he

can make on his client’s behalf.” Edwards, 777 F.2d at 365. 

To protect the criminal defendant’s Sixth Amendment right to

counsel, an Anders brief must “explain[] the nature of the case and

fully and intelligently discuss[] the issues that the type of case

might be expected to involve.” United States v. Wagner, 103 F.3d

551, 553 (7th Cir. 1996). Ordinarily, such a brief: 

should (1) identify, with record references

and case citations, any feature of the

proceeding in the district court that a court

or another lawyer might conceivably think

worth citing to the appellate court as a

possible ground of error; (2) sketch the

argument for reversal that might be made with

respect to each such potential ground of

error; and (3) explain why he nevertheless

believes that none of these arguments is

nonfrivolous. 

Edwards, 777 F.2d at 366. A proper Anders brief is essentially “an

expert opinion that the appeal is devoid of merit.” United States

v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam). 

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On appeal, Petitioner argued that he was sentenced improperly

because he was classified wrongly as a career offender. This error

arose, he asserted then and presses now, because he was sentenced

under the version of the Sentencing Guidelines in effect in 2008,

not those in force in 2006, which treated prior offenses somewhat

differently. Petitioner wanted appellate counsel to raise this ex

post facto issue on appeal. But appellate counsel found this issue

frivolous because, in her view, Petitioner’s guideline calculation

would have been the same under either version of the guidelines. 

Regardless, the Seventh Circuit considered this issue and found

that Petitioner had, because of comments he made at sentencing,

“waived any argument on appeal regarding his career-offender

status.” Cunningham, 393 F. App’x at 408. Petitioner, therefore,

could not have suffered any prejudice from appellate counsel’s

treatment of the issue and cannot obtain § 2255 relief based on

counsel’s alleged ineffectiveness. 

Petitioner also claims that appellate counsel proved

ineffective for failing to raise another issued related to his

classification as a career offender, this time regarding a

significant change in law. He notes that United States v. Welton,

583 F.3d 494 (7th Cir. 2009), which held that a district court may

not disagree with the career offender Guideline, was overruled by

United States v. Corner, 598 F.3d 411 (7th Cir. 2010), which

explained that a district court could disagree with the Guideline. 

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The Seventh Circuit in Corner explained that U.S.S.G. § 4B1.1 – the

career offender Guideline - provides a “benchmark” for

consideration in sentencing, but that its “floors” and “ceilings”

are “not legally binding.” Id. at 416.

However, this change in law is immaterial. Petitioner’s

status as a career offender yielded a guideline range of 210 to 240

months. After considering the factors listed in 18 U.S.C.

§ 3553(a), this Court sentenced Petitioner to only 180 months. The

Court even noted that Petitioner’s status as a career offender

“overstate[d]” his criminal history, and accordingly the Court

departed from the guidelines and gave Petitioner a lesser sentence. 

Tr. 8/25/09 at 37. At sentencing, this Court appropriately treated

the range provided for by the career offender Guideline as only a

“benchmark,” rather than as a “legally binding” floor. Corner, 598

F.3d at 416. Since this change in law had no bearing on sentencing

in the present case, Petitioner does not demonstrate how the “the

result of the proceeding would have been different” if counsel had

raised the issue on direct appeal. Strickland, 466 U.S. at 669. 

Thus, Petitioner cannot prevail on an ineffective assistance claim

on this issue.

Finally, Petitioner attacks the Anders brief as a whole,

arguing that it was improper for appellate counsel to brief the

“case entirely against Petitioner.” Motion at 12. Unfortunately

for Petitioner, “the right to appellate representation does not

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include a right to present frivolous arguments to the court.”

Smith v. Robbins, 528 U.S. 259, 272 (2000). In the fifty-seven

page Anders brief, appellate counsel identified eight arguments

that could have been raised on appeal, as well as numerous subissues within these arguments. The brief cites repeatedly to the

trial and sentencing record as well as a number of relevant legal

authorities, thereby evidencing a “diligent and thorough evaluation

of the case.” McCoy, 486 U.S. at 438. Utilizing these sources,

counsel explained the potential arguments and their blatant

deficiencies. Consistent with the “ethical obligation to refuse to

prosecute a frivolous appeal,” counsel then moved to withdraw. Id.

at 436. The Anders brief does not support the conclusion that

counsel acted in an adversarial manner to Petitioner, and nothing

suggests that counsel failed to meet the established standards for

filing an Anders brief. Indeed, a panel of Seventh Circuit judges

reviewed the brief, agreed that all of the issues were frivolous,

and granted the Motion to Withdraw. United States v. Cunningham,

393 F. App’x 403 (7th Cir. 2010) (unpublished order). For these

reasons, counsel’s representation of Petitioner on appeal did not

amount to ineffective assistance of counsel. 

IV. CONCLUSION

For the reasons stated, the Motion to Vacate, Set Aside or

Correct Judgment is denied. Petitioner’s other Motions [ECF

Nos. 9, 10, 12, 14, 18, 23] are denied as moot because no

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additional stay, extension, or status is necessary. Petitioner’s

request for a new sentencing hearing in light of Peugh v. United

States, 133 S.Ct. 2072 (2013) is denied because Petitioner’s

conviction became final before Peugh was decided and Peugh does not

apply retroactively. Hawkins v. United States, 724 F.3d 915, 917

(7th Cir. 2013). Finding no substantial showing of the denial of

a constitutional right, the Court denies a Certificate of

Appealability. 28 U.S.C. § 2253(c)(2). 

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Date:9/19/2014

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