UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

UNITED STATES OF AMERICA 

 v. 

VINCENT JONES 

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Case No. 3:15-CR-048 JD 

 3:18-CV-363 JD 

OPINION AND ORDER

Defendant Vincent Jones was convicted at trial of possessing a firearm as a felon. He 

received a sentence of 97 months of imprisonment, to run concurrent to a lengthier undischarged 

term of imprisonment he is serving on state convictions. On his direct appeal, Mr. Jones argued 

that this Court should have suppressed evidence recovered in a search of his home. The court of 

appeals disagreed and affirmed Mr. Jones’ conviction. 

Mr. Jones now moves to vacate his conviction under 28 U.S.C. § 2255. Pursuant to Rule 

4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, “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 . . . .” Here, it plainly 

appears from Mr. Jones’ motion that he is not entitled to relief on the claims he asserts, so the 

Court dismisses the motion. 

Mr. Jones presents four grounds in support of his motion. Three of them arise out of the 

search of his home, which he argues should have led to the suppression of evidence. He argues 

that the firearms that officers found inside a safe were not visible in plain view, that the 

inevitable discovery doctrine would not preclude suppression of those firearms, and that it was 

improper for officers to have searched the home without a warrant. None of these arguments 

could give rise to relief under § 2255, though, as all of those issues were explored thoroughly 

prior to trial and on direct appeal, and have already been decided. “A § 2255 motion is ‘neither a 
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recapitulation of nor a substitute for a direct appeal.’” Varela v. United States, 481 F.3d 932, 935 

(7th Cir. 2007) (quoting McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996)). Thus, 

“[i]ssues that were raised on direct appeal may not be reconsidered on a § 2255 motion absent 

changed circumstances.” Id.; see also United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014) 

(“A collateral attack cannot be used to obtain a second opinion on an argument presented and 

decided earlier.”); White v. United States, 371 F.3d 900, 902 (7th Cir. 2004) (holding that the 

doctrine of the law of the case “forbid[s] a prisoner to relitigate in a collateral proceeding an 

issue that was decided on his direct appeal”). 

These three grounds all go to whether the Court should have suppressed evidence, but 

those issues were raised and decided on appeal. In affirming Mr. Jones’ conviction, the court of 

appeals held that officers were entitled to enter the home based on his girlfriend’s consent, and 

that regardless of whether the firearms in the safe (which the parties agreed were outside the 

scope of the girlfriend’s authority to consent to a search) were visible in plain view, suppression 

would be unwarranted due to the inevitable discovery doctrine. United States v. Jones, 861 F.3d 

638 (7th Cir. 2017). A motion under § 2255 is not an opportunity to seek review of that decision, 

so Mr. Jones’ arguments to the contrary on those issues plainly fail to entitle him to relief. 

Mr. Jones also asserts what appears to be a claim of ineffective assistance of counsel. He 

states that there was a conflict of interest and breakdown of communication between him and his 

lawyer, and he objects that the Court denied requests to substitute counsel. To prevail on a claim 

of ineffective assistance of counsel, a defendant must show: (1) that his counsel’s performance 

was deficient, meaning that it fell below an objective standard of reasonableness; and (2) that he 

was prejudiced by the deficiencies in his counsel’s performance, meaning that there is a 

reasonable probability that the results of his sentencing hearing would have been different with 
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effective representation. Strickland v. Washington, 466 U.S. 687 (1984); Fuller v. United States, 

398 F.3d 644, 650 (7th Cir. 2005). 

Mr. Jones does not make any attempt to establish either element. He argues that there was 

a breakdown of communication and that he asked for new counsel, but that is not enough to 

support such a claim. “‘[T]he right to counsel of choice does not extend to defendants who 

require counsel to be appointed for them.’” United States v. Wallace, 753 F.3d 671, 675 (7th Cir. 

2014) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006)). And even 

defendants who argue on direct appeal that a district court should have appointed substitute 

counsel due to a breakdown in communication must show that their attorney was ineffective and 

that the ineffectiveness prejudiced the defense.1 Id. (“[I]f a defendant is still afforded adequate 

representation, an erroneous denial of a motion for substitution is not prejudicial and is therefore 

harmless.”); United States v. Harris, 394 F.3d 543, 554 (7th Cir. 2005) (“[E]ven if the district 

court abused its discretion in denying the motion for new counsel, we will nonetheless affirm the 

district court’s decision unless the defendant establishes that he was deprived of his Sixth 

Amendment right to effective assistance of counsel.”). To make that showing, Mr. Jones would 

have to identify “the specific acts or omissions of counsel that he believe constituted ineffective 

assistance.” Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). Mr. Jones has not done 

so; he rests his claim solely on the denial of substitute counsel, which he argues was warranted 

 

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 Mr. Jones states in his motion that he does not know why appellate counsel did not contest on 

appeal the denial of substitute counsel, but this is likely the reason, as the Seventh Circuit has 

repeatedly warned defendants against raising ineffective-assistance arguments on direct appeal. 

E.g., Flores, 739 F.3d 337, 341 (7th Cir. 2014). For the same reason, to the extent Mr. Jones 

means to assert a claim of ineffective assistance of appellate counsel on that basis, the claim 

would fail. See Vinyard v. United States, 804 F.3d 1218, 1227 (7th Cir. 2015) (“[B]ringing a 

premature claim for ineffective assistance of counsel on direct appeal is not prudent, and we have 

repeatedly cautioned defendants against raising such claims on direct appeal.”).
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due to a conflict and breakdown of communication between him and his attorney. Because such 

a claim plainly fails to support relief under § 2255, the Court dismisses the motion. 

For the same reasons, the Court denies the issuance of a certificate of appealability, as the 

claims are not sufficient to deserve encouragement to proceed further and their resolution is not 

debatable. The Court advises Mr. Jones that pursuant to Rule 22(b) of the Federal Rules of 

Appellate Procedure, when the district judge denies a certificate of appealability, the applicant 

may request a circuit judge to issue the certificate. The Court further advises Mr. Jones that any 

notice of appeal must be filed within 60 days after judgment is entered on this motion. Fed. R. 

App. P. 4(a); Guyton v. United States, 453 F.3d 425, 427 (7th Cir. 2006) (stating that “the time to 

contest the erroneous denial of [the defendant’s] first § 2255 motion was within 60 days of the 

decision”). 

Mr. Jones has filed various other procedural motions. He filed a motion to proceed in 

forma pauperis [122] and a motion for leave to appeal in forma pauperis [DE 121], but no filing 

fee is due on a motion under § 2255 and no appeal is pending, so those motions are denied as 

moot. Mr. Jones also moves for the appointment of counsel. [DE 123]. However, a petitioner is 

not entitled to counsel as of right for a motion under § 2255, and the circumstances here do not 

warrant appointment of counsel. See Oliver v. United States, 961 F.2d 1339, 1343 (7th Cir. 

1992). Finally, Mr. Jones asks that a transcript of a pretrial conference be prepared and provided 

to him at no cost. [DE 124]. Other than a conclusory assertion that “critical” facts took place at 

the hearing, though, Mr. Jones does not indicate how the transcript would be relevant to his 

motion. And as discussed above, he has not identified a non-frivolous claim that the transcript 

could support. The Court therefore denies that motion as well. 
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To summarize, the Court DISMISSES Mr. Jones’ motion under § 2255 [DE 120] and 

DENIES the issuance of a certificate of appealability. The Court also DENIES Mr. Jones’ 

remaining motions. [DE 121–24]. 

 SO ORDERED. 

 ENTERED: June 7, 2018 

 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court