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UNITED STATES v. BAKER

June 2, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
SHAWN BAKER, Defendant.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

Before the court is the second motion of defendant Shawn Baker, to reduce, vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the court denies defendant's motion.

 I. BACKGROUND

 On October 6, 1992, defendant entered a plea of guilty to one count of conspiracy to distribute narcotics, 21 U.S.C. § 846. Defendant entered his guilty plea pursuant to a Rule 11(e)(1)(c) plea agreement with the government under which Baker agreed to provide substantial assistance to the government and, in return, the government promised to move for a downward departure pursuant to Guideline Section 5K1.1 to an agreed sentence of incarceration of fifteen years. The court accepted the plea and entered a judgment of guilty. (Transcript dated October 6, 1992 ("Tr."), at 20-21.) On June 2, 1993, defendant was sentenced to a term of fifteen years.

 Defendant did not appeal his sentence. Instead, he filed his first section 2255 motion. The court denied defendant's motion, finding that his claims were not properly raised by a section 2255 petition. Defendant now brings his second section 2255 motion, arguing seven grounds of ineffective assistance of counsel.

 II. DISCUSSION

 A. Procedural Default

 The government argues that defendant's failure to raise on direct appeal the arguments he now makes bars his present motion. The Seventh Circuit, however, has made clear that a defendant may -- indeed should -- raise an ineffective assistance claim for the first time in a section 2255 motion. United States v. Ellis, 23 F.3d 1268, 1994 U.S. Dist. LEXIS 10761, 1994 WL 182833, at *6 (7th Cir. May 12, 1994); United States v. Reiswitz, 941 F.2d 488, 495 (7th Cir. 1991); United States v. Taglia, 922 F.2d 413, 418 (7th Cir. 1991). Defendant's motion is appropriately brought to this court now.

 B. Ineffective Assistance of Counsel

 Because counsel is presumed effective, a defendant bears a heavy burden in proving that his trial attorney rendered ineffective assistance of counsel. United States v. Guerrero, 938 F.2d 725, 727 (7th Cir. 1991). A conviction will be reversed for ineffective assistance of counsel only if the defendant satisfies the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under this test, a defendant must show "'(1) that the attorney's representation fell below an objective standard of reasonableness (performance prong), and (2) that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different (prejudice prong).'" Dugan v. United States, 18 F.3d 460 (7th Cir. 1994) (citations omitted).

 Defendant argues that his trial counsel provided ineffective assistance because (1) he did not engage in sufficient pretrial investigation to enable him to challenge aspects of the sentencing determination; (2) he failed to challenge the government's 22 kilogram drug distribution calculation or insist upon a precise calculation of the amount of drugs for which defendant should have been held responsible; (3) he mislead defendant as to the effect of defendant's two-point acceptance of responsibility reduction; (4) he lead defendant to believe that his case would be decided under pre-Guideline law when, in fact, it was a Guideline case; (5) he ineffectively negotiated Baker's plea agreement and then coerced Baker to enter his plea to cover the time frame of 1986 through the fall of 1987; *fn1" and (6) he falsely informed Baker that the only information in Baker's file was an indictment and refused to discuss the case with Baker. The court will address each of these allegations.

 Initially, Baker offers several arguments pertaining to his role in the conspiracy. Baker alleges that his trial counsel did not engage in sufficient pretrial investigation, that such investigation would have revealed that Baker "could not have been responsible for the amount of drugs in the plea agreement" (Motion Under 28 U.S.C. § 2255, at 5), and that counsel improperly failed to challenge the government's 22 kilogram calculation of the amount of heroin the conspiracy sold during Baker's tenure in the organization.

 The only evidence defendant has offered to support his claim that he was not responsible for the amount of heroin forming the basis of his plea is his unsubstantiated allegation -- an allegation that contradicts his earlier sworn statements. In his plea agreement, Baker admitted that during the time of his involvement in the Sims organization, the conspiracy distributed at least 22 kilograms of heroin and multiple kilograms of cocaine. *fn2" In addition, at his Rule 11 hearing, defendant expressly acknowledged the accuracy of these facts. (Tr. at 16-20.) Baker repeatedly replied under oath that he knew the organization ran numerous drug distribution ...


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