The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM OPINION AND ORDER
This case is before the court on the petition of Lonnie
Buchanan for a writ of habeas corpus pursuant to
28 U.S.C. § 2255. For the reasons stated below, the petition is denied.
A grand jury returned a five-count indictment against Lonnie
Buchanan and a co-defendant on November 2, 2000. Count One
charged both defendants with conspiracy to distribute heroin and
crack cocaine in violation of 21 U.S.C. § 846. Count Two charged
Buchanan's co-defendant with distribution of heroin in violation
of 21 U.S.C. § 841(a)(1). Counts Three, Four and Five charged
both defendants with distribution of heroin and crack cocaine,
all in violation of 21 U.S.C § 841(a)(1). Following a jury trial
commencing on September 17, 2001, the jury returned a guilty
verdict against both defendants on all counts of the indictment.
Buchanan was sentenced to a 151-month term of imprisonment on
February 26, 2002.
Buchanan, with his co-defendant, appealed his conviction to the
United States Court of Appeals for the Seventh Circuit.
Defendants' attorneys filed a consolidated Anders brief with
the Seventh Circuit asserting that they could not find a
nonfrivolous basis for the appeal and seeking to withdraw from
their representations of defendants. See Anders v. California,
386 U.S. 738 (1967). On March 14, 2003, the Seventh Circuit granted the
motions to withdraw and dismissed the appeal. See United States
v. Omar Fazal and Lonnie Buchanan, Nos. 02-1330 & 02-1756 (7th
Cir. Mar. 14, 2003). Buchanan filed a petition for a writ of
certiorari, which was denied on October 6, 2003. See Buchanan v.
United States, 124 S. Ct. 171 (2003).
On August 17, 2004, Buchanan filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255. In his
motion, Buchanan challenges the jurisdiction of the federal
courts, asserts an ineffective assistance of counsel claim, and
argues that the district court erred when it allowed custodial
statements of non-testifying co-defendants to be heard at trial,
when it did not find that Buchanan played a minor role in the
offenses, and when it found that Buchanan participated in a drug
conspiracy although he was not found in physical possession of
Collateral relief under 28 U.S.C. § 2255, the federal habeas
corpus statute, is available only in limited circumstances. The
statute provides in relevant part:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess or the maximum authorized by
law, or is otherwise subject to collateral attack,
may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
28 U.S.C. § 2255. Such relief is therefore limited to "an error
of law that is jurisdictional, constitutional, or constitutes a
fundamental defect which inherently results in a complete
miscarriage of justice." Bishchel v. United States,
32 F.3d 259
, 263 (7th Cir. 1994), quoting Borre v. United States,
940 F.2d 215
, 217 (7th Cir. 1991). If the reviewing court determines
that such defect exists in the judgment or sentence, it "shall
vacate and set the judgment aside and shall discharge the prisoner or re-sentence him or grant a new trial or
correct the sentence as may appear appropriate."
28 U.S.C. § 2255.
I. Federal Jurisdiction Is Appropriate Because Buchanan
Violated a Federal Statute
Buchanan alleges that the government did not have jurisdiction
to prosecute him in federal court. However, it has long been
understood that the federal and states courts have concurrent
jurisdiction over certain matters. See United States v. Lanza,
260 U.S. 377, 382 (1922) (finding that "an act denounced as a
crime by both national and state sovereignties is an offense
against the peace and dignity of both and may be punished by
each"). Here, Buchanan was indicted, tried, and found guilty of
violating federal narcotics statutes. Thus, Buchanan's allegation
of no federal jurisdiction is without merit.
II. Buchanan's Trial Counsel Provided Effective Assistance of
Buchanan argues that he was denied his Sixth Amendment right to
effective assistance of counsel. The standard for reviewing a
claim of ineffective assistance of counsel was set forth by the
United States Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984). Strickland applies a two-prong analysis: (1)
whether his counsel's deficiencies prejudiced his defense (the
"prejudice" prong), and (2) whether counsel's performance fell
below an objective standard of reasonableness (the "performance"
prong). Id. at 688-692.
The prejudice prong requires Buchanan to "show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been different."
Id. at 695. A court is not required to determine whether
counsel's performance was deficient before examining the
prejudice prong. Id. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should
be followed." Id.
In order to satisfy the performance prong, Buchanan must
specifically identify acts or omissions that form the basis of
his claim of ineffective assistance. Id. at 690. Based on the
totality of the circumstances, the court must then determine
whether the identified acts and omissions fall outside the range
of professionally competent assistance. Id. Courts must begin
this analysis with a strong presumption that counsel rendered
reasonably effective assistance. See United States v. Morales,
964 F.2d 677, 683 (7th Cir. 1992). A defense attorney's
performance is acceptable when he chooses a professionally
competent strategy that secured for the accused the benefit of
the adversarial process. See Kokoraleis v. Gilmore,
131 F.3d 692, 696 (7th Cir. 1997). Under Strickland, courts should not
second-guess counsel with the benefit of hindsight and can
require only "a professionally competent defense, not . . . the
best possible defense." Holman v. Gilmore, 126 F.3d 876, 883
(7th Cir. 1997). Additionally, "a lawyer's decision to call or
not to call a witness is a strategic decision generally not
subject to ...