Abuse of Discretion – Ineffective Assistance of Counsel

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7^th Circuit Court of Appeals

Case Name: United States of America v.  Anthony Lomax

Case No.: 21-2274

Officials: FLAUM, SCUDDER, and KIRSCH, Circuit Judges.

Focus: Abuse of Discretion – Ineffective Assistance of Counsel

In 2014, a jury convicted Anthony Lomax of heroin distribution and firearm offenses. Lomax’s prior felony convictions for drug and violent offenses subjected him to increased penalties at sentencing. As a result, the district court sentenced Lomax to a term of 400 months’ imprisonment. On remand from an appeal in 2017, the district court again sentenced Lomax to 400 months’ imprisonment. In 2019, Lomax moved, pro se, to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging his counsel performed deficiently during his 2017 resentencing by failing to investigate whether Lomax’s prior Indiana cocaine conviction constituted a “felony drug offense” under 21 U.S.C. § 841. The district court construed Lomax’s motion as arguing that he was actually innocent of the § 841 sentencing enhancement and agreed that he was. Accordingly, the district court granted Lomax’s motion and vacated his sentence. Lomax was then resentenced in 2021, without application of the § 841 sentencing enhancement, to a term of 300 months’ imprisonment. Lomax now raises two issues on appeal: first, whether the district court abused its discretion by not holding a § 2255 evidentiary hearing regarding his ineffective assistance of counsel allegations; and second, whether his prior attempted murder conviction constitutes a crime of violence under U.S.S.G. § 4B1.2.

Affirmed

Decided 10/11/22

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