The court then questioned Correa himself about the decision not to testify. Correa told the court that he was not going to testify. The court told Correa that it was his decision whether or not to testify, and asked him whether he had discussed the decision with his lawyer. Correa told the court that he had discussed the decision with his lawyer and that it was his decision not to testify.
It is clear that Correa himself, in consultation with his lawyer, decided not to testify at his trial. Moreover, if Correa's counsel advised Correa not to testify, it is equally clear that counsel did so out of sound trial strategy, because he did not want the government to be able to introduce certain evidence through cross-examination of Correa. Therefore, Correa's counsel was not ineffective because of Correa's decision not to testify at trial.
Second, as the court noted above, a defense of entrapment would have been inherently inconsistent with Correa's theory of defense at trial -- that he was present at but not involved in the cocaine deal. Moreover, as the court already noted, the evidence at trial would not have supported an entrapment defense. Consequently, Correa's counsel was not ineffective for failing to raise the entrapment defense.
Third, Correa has provided no substantiation for his conclusory presumption that his trial counsel was ineffective because he became a federal prosecutor shortly after Correa's trial. Correa has not identified any particular instance where the alleged conflict of interest affected his counsel's performance. Moreover, the mere fact that Correa's counsel left criminal defense work and became a federal prosecutor immediately after Correa's trial in itself does not create the presumption that his counsel labored under an actual conflict of interest when he represented Correa. See United States v. Horton, 845 F.2d 1414, 1419 (7th Cir. 1988) (rejecting presumption that defense attorney who was being considered for position of United States Attorney was "unable to represent a defendant in federal court to the best of his ability, and with the defendant's best interest in mind"). Consequently, Correa's counsel was not ineffective simply because he became a prosecutor immediately after Correa's trial.
Since Correa has not shown that his counsel's performance was deficient, the court need not consider whether counsel's performance prejudiced the defense. However, suffice it to say that the evidence presented at trial against Correa was considerable. Even if counsel's performance had been deficient in the ways that Correa suggests, Correa very probably would have been convicted anyway. Thus, Correa was not prejudiced by his trial counsel's alleged errors.
E. Court bias
Correa alleges that this court was biased against him, and therefore that he was deprived of a fair trial and sentencing. Correa's sole support for his claim are his allegations that the judge stated that he had been in the hospital and had taken the chance of dying to be in court to sentence Correa; and that Correa's counsel had become so outraged at the court's conduct at sentencing that he could not control his anger and had to be admonished by the court to regain his composure.
The problem with Correa's claim of bias is that his allegations are completely baseless. A review of the sentencing transcript shows that Correa's version of his sentencing is pure fiction; these alleged events simply did not occur. Since Correa has not demonstrated that the court held any impermissible bias towards him, he has not substantiated his claim that he was deprived of a fair trial and sentencing because of the court's bias.
In sum, because Correa waived all of the arguments contained in his section 2255 petition by not raising them on direct appeal, and because, in any event, the arguments are of no merit, the court denies Correa's section 2255 petition.
For the foregoing reasons, the court denies defendant Ivan J. Correa's petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Date: JUN 13 1997
JAMES H. ALESIA
United States District Judge
JUDGEMENT IN A CIVIL CASE - JUN 16 1997, DOCKETED
Decision by Court. This action came to a hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the court denies petitioner Ivan J. Correa's petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Section 2255. Case closed.
June 13, 1997