The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Ralphfield Hudson, a federal prisoner, filed a motion pursuant
to 28 U.S.C. § 2255, raising numerous issues related to the
ineffectiveness of both his trial and appellate counsels. Hudson
has also filed a "summary judgment motion for default" and a
motion for discovery pursuant to Rule 6 of the rules governing §
2255 proceedings, and has requested an evidentiary hearing. The
government has answered the § 2255 motion as well as the Rule 6
Failure to raise an ineffective assistance of counsel claim on
direct appeal does not bar the claim from being brought via §
2255. Ballinger v. United States, 379 F.3d 427, 429 (7th
Cir. 2004). The standard for assessing the effectiveness of trial
and appellate counsel is the same, whether counsel's conduct so
undermined the proper functioning of the adversarial process that
the trial or appeal cannot be relied on as having produced a just
result. Mason v. Hanks, 97 F.3d 887, 892 (7th Cir. 1996).
There is a strong presumption that counsel was constitutionally
effective. Mason, 97 F.3d at 892. In order to proceed on such a
claim, a petitioner must first show that his lawyer's conduct
fell below an objective standard of reasonableness, and, second,
that any ineffectiveness was so prejudicial it rendered the trial
or appeal fundamentally unfair and the result unreliable.
Mason, 97 F.3d at 892-93. As for appellate counsel, she does
not need to raise every non-frivolous issue, and only where the
omitted issue is significant and obvious and may have resulted in
a reversal or new trial will ineffectiveness be deemed
prejudicial. Mason, 97 F.3d at 893.
Keeping these principles in mind, the court will address each
of Hudson's claims. The claim that his appellate counsel, Debra
Schafer, was ineffective for failing to raise trial counsel's
ineffectiveness regarding his failure to move to suppress
evidence and for failing to preserve a Batson issue at trial
fails. First, these were issues more properly raised in a § 2255
motion as opposed to direct appeal. Second, as for the Batson
issue, there is no showing of prejudice for failure to raise it
on direct appeal in light of the Court of Appeals' finding in the
context of an Anders v. California, 386 U.S 738 (1967), motion,
that the issue was frivolous. See United States v. Hudson,
2002 WL 31420106, **2, unpublished order pursuant to Circuit
Court Rule 53 (7th Cir. Oct. 25, 2002).
Hudson's claim that his appellate counsel had a conflict of
interest because other attorneys in her office previously
represented clients in a civil case whose interests were opposed
to his also fails. He has neither alleged nor shown either a
potential conflict of interest or an actual conflict. See Hall
v. United States, 371 F. 3d 969, 973 (7th Cir. 2004).
This is further reflected in his appellate counsel's unrefuted
affidavit. Moreover, there is no indication of any prejudice or
adverse effect from any such conflict in appellate counsel's
handling of the appeal.
Hudson also claims his trial counsel, David Farmer, had a
conflict of interest based on an unfounded assertion that Farmer
applied for and obtained a job as a state court prosecutor prior
to completion of Hudson's trial in this court. Again, Hudson
offers no factual basis to support such a claim, and the
undisputed affidavit of trial counsel states that he neither
applied for nor obtained employment as a state prosecutor prior
to the trial being completed. After the trial, but prior to
sentencing, trial counsel did accept such employment and promptly
moved to withdraw in Hudson's case. There is no suggestion of any
conflict under these circumstances.
Related to this claim, Hudson has filed a motion pursuant to
Rule 6 seeking to obtain a copy of his trial counsel's
application for the state prosecutor's position in an effort to
show that the application was in fact made prior to February 1,
2002, or to show the government and his trial attorney are
"practicing fraud on this Honorable Court." This motion is denied
as Hudson has not shown good cause for such discovery. Even if
trial counsel had applied for the position during the trial, that
would not entitle Hudson to relief in light of counsel's
vigorous, and partially successful, defense and the speculative
nature of any conflict based on a mere job application.
The remaining claims by Hudson related to his trial counsel's
effectiveness are all lacking in specificity and fail to identify
any resulting prejudice.
In this regard, as to the motion for pre-trial discovery, it is
undisputed that trial counsel did, in fact, file a motion for and
received extensive discovery, and Hudson has not specified what
evidence was not disclosed. The same can be said for the claim
that trial counsel did not file a reply to the government's
response to the motion to suppress as Hudson has not stated how
such failure prejudiced his defense. He also has not specified
how he was prejudiced by trial counsel's failure to file a motion
regarding the Speedy Trial Act, nor has he suggested the trial
was not commenced in a timely manner.
As for trial counsel's asserted failure to investigate, locate,
and call witnesses, Hudson only identifies one witness and, as to
her, fails to specify what her testimony would have been or how
it would have made a constitutional difference in his case,
especially in light of the significant evidence supporting the
Hudson vaguely asserts that his trial counsel was ineffective
for failing to move to suppress a gun found in the residence. He
has not, however, suggested any legal or factual basis for such a
Hudson claims that he was denied the effective assistance of
counsel because his counsel did not consult with him about the
possibility of his testifying. The decision to testify belonged
to Hudson, see Taylor v. United States, 287 F.3d 658, 661
(7th Cir. 2002), and when asked by the court if he desired to
testify he answered no. Further, he has not indicated what
exactly his trial counsel should have advised him in that regard.
If it was to testify, that would not have been sound advice in
light of Hudson's numerous felony convictions. Also, any such
advice would constitute a matter of trial strategy.
Hudson's claim regarding trial counsel's failure to preserve
any challenge to voir dire fails for lack of specificity. To
the extent it refers to the previously discussed Batson issue,
it is non-meritorious for the reasons already stated.
Hudson has likewise failed to identify which witness his trial
counsel failed to properly cross-examine or what potential prior
inconsistent statements could have been utilized. Further, ...