prejudiced from his failure to raise this argument previously, since it is a nonstarter.
Defendant's failures constitute an abuse of the writ, and he is barred from bringing these arguments in this subsequent motion.
1. Section 3553(f)
Under Section 3553(f), defendant believes he should not be subjected to the mandatory minimum sentence. Regardless of any other reason, defendant does not even qualify for the exception to the statutory mandatory minimum. One of the requirements for the exception is that the defendant not have more than one criminal history point as calculated under the sentencing guidelines. Sunday Oboh had more than one criminal history point. (See Statement of Reasons for Imposing Sentence Under the Sentencing Guidelines at 4.) This is the most obvious, but not only, defect in Oboh's Section 3553(f) argument.
2. Ineffective Assistance of Counsel
Counsel is presumed effective, and therefore defendant bears a heavy burden in proving an ineffective assistance of counsel claim. United States v. Guerrero, 938 F.2d 725, 727 (7th Cir. 1991). Defendant must satisfy 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, 464 (7th Cir. 1994) (citations and internal quotation marks omitted). To succeed the defendant "must identify the specific acts or omissions of counsel that formed the basis for his claim of ineffective assistance." Id. (internal quotation marks omitted).
Defendant argues that his attorney provided ineffective assistance of counsel because (1) there was a lack of communication with counsel, specifically he was left in the dark and was not aware of an "enhancement"; and (2) counsel broke his promise that the defendant would not be sentenced to more than one year. (Motion at 5-6.)
Defendant's first ineffective assistance argument fails because it does not pass the test set forth in Strickland. Defendant has made no showing that his attorney's representation fell below an objective standard of reasonableness or that there is a reasonable probability that, but for the alleged failure to communicate, the results would have been different. Furthermore, defendant has failed to identify any specific acts or omissions of counsel. He only says that he was "left in the dark" and was unaware of any enhancement. However, at the plea hearing defendant indicated he was fully informed and acknowledged his understanding of the plea process and the applicable sentencing guidelines and statutory provisions in the plea agreement. (Tr. at 9-12.)
The second ineffective assistance argument about broken promises fails as well. Defendant argues that he was told by his attorney that he would not be sentenced to more than one year. This argument completely contradicts the plea transcript. During the plea hearing, the court asked defendant whether he had received any promises other than those contained in the plea agreement, and he responded, "No." (Tr. at 9, 12.) Even accounting for the fact that the referenced promises are probably thought of as between defendant and the government, the argument fails. Both the plea agreement and the plea colloquy explored the details of sentencing, and no reference to a "one-year" sentence is found therein.
Defendant's second Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 is denied with prejudice. Defendant's Application to Proceed in Forma Pauperis is moot.
Date: MAR 06 1995
JAMES H. ALESIA
United States District Judge