previously present his ineffective assistance of trial counsel claim because of the ineffective
assistance of his appellate counsel.
1. _ Cause and Prejudice ;

In order for an appellate attorney’s alleged ineffectiveness to qualify as cause justifying
procedural default, the defendant must show the appellate attorney’s performance was deficient and
the performance prejudiced him in the proceeding, /d. at 1179, citing Strickland v. Washington, 466
U.S. 668 (1984). The court may determine whether the defendant has established prejudice before
delving into any alleged deficiencies in counsel’s performance. Strickland, 466 U.S. at 697. To
show prejudice, a defendant must prove “that there is a reasonable probability that, but for counsel’s
unprofessional ettors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Jd. at 694. Not one
of Richardson’s 29 contentions regarding his trial counsel’s performance would have been successful
if raised on direct appeal.

a. Indictment

Richardson claims his first lawyer failed to request a speedy trial. Motion, Attachment at 1.
Richardson does not indicate how the outcome of his case would have been different but for his first
lawyers’ inaction. Indeed, the district court is given “great discretion” whether to dismiss the
indictment with or without prejudice for a Speedy Trial Act violation. United States v. Fountain,

_ 840 F.2d 509, 512 (7th Cir. 1988), citing 18 U.S.C. § 3162(a)(1)(among other things, the court
should consider “the seriousness of the offense; the facts and circumstances of the case which led
to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the

administration of justice”). Absent any evidence the court would have dismissed the indictment with


counsel’s alleged ineffectiveness. For the same reasons, Richardson also fails to show actual
prejudice justifying the procedural default. McCleese, 75 F.3d at 1181.
B. Fundamental Miscarriage of Justice

Absent cause and prejudice, the court may review a defaulted claim only if a fundamental
miscarriage of justice is involved. This occurs where “a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Murray v, Carrier, 477 U.S. 478, 495-96
(1986). In pleading guilty, Richardson admitted the charged criminal behavior. Response, Exhibit
C at 26-29. Therefore, no fundamental miscarriage of justice will result by the application of the
procedural default rule.
I. Hearing

A § 2255 motion should be dismissed without a hearing “if it plainly appears from the facts
of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not
entitled to relief.” Dugan v. United States, 18 F.3d 460, 464 (7th Cir. 1994), Richardson fails to
allege facts that would, if proven, entitle him to relief. Therefore, an evidentiary hearing is
unnecessary to decide this motion,

July 31,2002

Zann¢ B. Conlon
United States District Judge


317 (4th Cir. 2000)(amendment arising out of separate occurrence did not relate back); United States
v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)(proposed amendment “distinctly separate” from
original claims did not relate back). In his supplement, Richardson seeks to add three new grounds
for relief. The conduct underlying his supplemental due process, jurisdictional and constitutional
challenges is distinctly separate from the conduct underlying his ineffective assistance of counsel
claim. Therefore, Richardson’s supplemental claims are time-barred.
Il. Ineffective Assistance of Counsel

In his timely motion, Richardson claims the four lawyers who represented him before this
court were ineffective on 29 separate occasions. Nevertheless, Richardson did not raise an
ineffective assistance of counsel claim on direct appeal. Ineffective assistance of counsel may be
raised for the first time in a § 2255 motion only with a valid reason such as: (1) trial and appellate
counsel are the same; or (2) the defendant needed time to develop additional extrinsic evidence to
support his ineffective assistance claim. Guinan v. United States, 6. F.3d 468, 471-72 (7th Cir.
1993). Richardson, who was represented by different counsel on appeal, does not offer any extrinsic
evidence to support his ineffective assistance of counsel claim. Therefore, his claim regarding the
ineffectiveness of his trial counsel should have been raised on direct appeal. See McCleese v. United
States, 75 F.3d 1174, 1179 (7th Cir. 1996).
A. Procedural Default

Inorder to overcome this procedural default, Richardson must show: (1) both good cause for
his failure to raise the claims on direct appeal and actual prejudice from the failure to raise those
claims; or (2) a fundamental miscarriage of justice resulting from the district court’s refusal to

consider the claims. Jd. at 1177-78. Richardson claims, without any factual support, that he did not


prejudice after considering these factors, Richardson fails to establish prejudice resulting from the
alleged inaction of his first lawyer.
b. Guilty Plea
Richardson next claims the three lawyers who took over his defense committed 21 errors in
connection with his guilty plea. Motion, Attachment at 25. Specifically, Richardson claims his
guilty plea was not knowing and voluntary because his lawyers’ failed to properly represent him.
To demonstrate his plea was the result of ineffective assistance of counsel, Richardson “must
establish that his counsel’s performance was objectively unreasonable and that but for counsel’s
errors, he would not have pleaded guilty and instead gone to trial.” United States v. Martinez, 169
F.3d 1049, 1052-53 (7th Cir. 1999). Richardson does not claim, or offer any evidence, he would
have gone to trial but for his attorneys’ alleged errors. See McCleese, 75 F.3d at 1179 (petitioner
rast ‘establish “through objective evidence” he would not have accepted the plea). Indeed,
Richardson pled guilty after the court thoroughly explained the elements of the charges against him
and the consequences of pleading guilty. Response at Exhibit C. Based on the plea colloquy,
Richardson cannot demonstrate he suffered prejudice as a result of his counsel’s alleged deficient
performance. See Steward v. Gilmore, 80 F.3d 1205, 1212 (7th Cir. 1996)(no prejudice results from
ineffective counsel where defendant understands the elements of the charge and the consequences
of pleading guilty).
c Presentence Investigation
Richardson next identifies two purported errors committed by his lawyers in connection with
the presentence investigation, “Motion, Attachment at 7. In both instances, he fails to identify any

prejudice resulting from his lawyers’ alleged professional errors. First, he cannot establish prejudice


wel alk

a i.

‘Miute Order Fogm (06/97)

United States District Court, Northern District of Illinois

LY

i Sitting Jt if Oth
vy Magierate Judge Suzanne B. Conlon than Assigned Judge
CASE NUMBER | 02 C 4041 (99 CR 339) DATE] 1/3: foz
CASE UNITED STATES vs. THOMAS RICHARDSON
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.)

ay

federal custody [1-1] is denied. ENTER MEMORANDUM OPINION AND ORDER.

Heseane 8 Orle

a [For further detail see order attached to the original minute order.]

MOTION:
DOCKET ENTRY:
qa) a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) a Answer brief to motion due___. Reply to answer brief due.
(4) o Ruling/Hearing on setfor___—_at
(5) 0 Status hearing[held/continued to] [set for/re-set for]on__—-—sset for___—_att
(6) im} Pretrial conference[held/continued to] [set for/re-set for]on___——ssetfor_———saat__
(7) oO Trial{set for/re-set for] on at
(8) oO (Bench/Jury trial] [Hearing] heid/continued toa
(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (General Rule21 [J FRCP41(a)(1) [) FRCP41(a)(2).
do [Other docket entry] | Defendant’s motion to vacate, set aside or correct sentence by a person in

v

No notices required, advised in open court.

No notices required. number of notices

“Number...

ument.

Notices mailed by judge's staff.

AUG ze

(pf.
36erirg deputy initials

Notified counsel by telephone,
Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

, e-|  Tfatloz
. courtroom egg td 1S rr 20 date maid notice
cB deputy’s a pw
initials —
(pie eireegived inal ; 7
ritral Clerk's Office olig depoy ints



from his counsel’s failure to attend the presentence interview. A presentence interview is not a
critical stage in the proceedings where the presence of an attorney is required. United States v.
Hodges, 259 F.3d 655, 660 (7th Cir. 2001). Second, he claims his lawyer recommended telling the
investigator about his substance abuse problem. Once again, Richardson fails to show he suffered
any prejudice from the allegedly deficient advice. Strickland, 466 U.S. at 694.
d. Sentencing
Richardson’s arguments regarding his trial counsel’s performance at sentencing similarly lack
merit. Motion, Attachment at 6. Richardson first claims his attorneys failed to effectively argue:
(1) for downward departure; (2) against upward departure; and (3) against special conditions of
supervised release. Nevertheless, Richardson fails to point to any evidence not presented by his
counsel that would have impacted his sentence. See Jackson v. Roth, 24 F.3d 1002, 1005 (7th Cir.
1994)(lawyers are not constitutionally required to pursue low-probability prospects in seeking
reduction in client’s sentence). Richardson next claims his attorneys failed to object when the court
sentenced him without grouping counts. Richardson suffered no prejudice because the court grouped
both counts in determining his sentence. See Richardson, 238 F.3d at 839 (“Richardson was
convicted under both statutes but sentenced under the guideline applicable to the one carrying the
heavier maximum penalty. That was proper under the guidelines’ grouping rules, U.S.S.G. §§
3D1.1, 3D1.3(a) . . .”). Finally, Richardson cannot establish prejudice from his lawyers’
recommendation that he limit his allocution. Denial of the right to allocution is not a constitutional
error that can be raised through a § 2255 motion. Hill y. United States, 368 U.S. 424, 428 (1962).

In sum, Richardson has not shown the requisite prejudice to establish cause based on his appellate


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

me sug lttig

EASTERN DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, ) | No.02¢ 4041 a]
j Oye
v. ) Suzanne B. Conlon, Judge

)
THOMAS RICHARDSON, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Thomas Richardson (“Richardson”) pled guilty to receiving and possessing child
pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). This court sentenced Richardson
to 108 months in prison. The Seventh Circuit affirmed. United States v. Richardson, 238 F.3d 837
(7th Cir. 2001). The United States Supreme Court thereafter denied Richardson’s petition for a writ
of certiorari. Richardson v, United States, 532 U.S. 1057 (2001). Proceeding pro se, Richardson
now moves to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, claiming he was
denied ineffective assistance of counsel (Ground I). Richardson also filed a “supplement” to his
original motion, claiming he was denied due process (Ground II), the court lacked jurisdiction
(Ground III) and the statute under which he was convicted is unconstitutional (Ground IV).

DISCUSSION
L Timeliness
Section 2255 motions are governed by the one-year limitations period set forth in the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, the limitations

period runs from the latest of four events:


(1) _ the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review; or

(4) _ the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.

28 U.S.C. § 2255 J 6(1)-(4). Richardson’s conviction became final when the United States Supreme
Court denied his petition for writ of certiorari on May 29, 2001. United States v. Marcello, 212 F.3d
1005, 1008 (7th Cir. 2000). Richardson then had until May 29, 2001 to file a motion for collateral
relief. Jd. at 1010 (Section 2255 motion must be filed by “close of business on anniversary date of
the certiorari denial”). Therefore, Richardson’s motion dated May 28, 2002 is timely. See Jones v.
Bertrand, 171 F.3d 499 (7th Cir. 1999)(pro se prisoner’s § 2255 motion deemed filed upon delivery
to prison officials).

Richardson’s July 10, 2002 supplement is timely only if it relates back to his original motion.
Rodriguez v. United States, 286 F.3d 972, 981 (7th Cir. 2002), citing Fed. R. Civ. P. 15(c). An
amendment relates back to the date of the original pleading where “the claim or defense asserted in
the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to
be set forth in the original pleading.” Fed. R. Civ. P. 15(c)(2). Amendments that attempt to add a
new claim or theory of relief do not relate back to the original pleading. Rodriguez, 286 F.3d at 981,
citing United States v. Thomas, 221 F.3d 430, 436 (3d Cir. 2000)(Rule 15(c)(2) only applies to

amendments that seek to clarify or amplify existing claims); United States v. Pittman, 209 F.3d 314,