The opinion of the court was delivered by: Richard Mills, U.S. District Judge.
The Court now considers Petitioner Suarawa Amuda's Motion to Vacate, Correct, or Set Aside Sentence pursuant to 28 U.S.C. § 2255.
On March 29, 2004, Petitioner Suarawa Amuda entered an open guilty plea to charges of possessing a machine gun, being a convicted felon in possession of a firearm and distributing cocaine. A Presentence Investigation Report ("PSR") was prepared and copies were given to the parties. The PSR held Amuda responsible for 1005 grams of crack cocaine.
Amuda's sentencing hearing was continued several times due to Booker-related concerns. On May 14, 2005, the parties submitted a Joint Position Regarding Sentencing Factors (hereinafter the "Joint Agreement") in to order resolve objections to the Presentence Investigation Report ("PSR"). The parties agreed that Amuda would be responsible for at least 35 grams but less than 50 grams of crack.
The Court accepted the parties' joint position at the May 16, 2005, sentencing hearing. This resulted in a six level reduction of the base offense level for Amuda's drug conviction and a reduction in his guideline range from 210 to 262 months to 130 to 162 months. Pursuant to the terms of the Joint Agreement, the government recommended 130 months imprisonment for Amuda. Amuda joined in that recommendation.
The Court sentenced Amuda to 130 months imprisonment on the drug count (Count 3) and ordered that it be served concurrently with 120 months of imprisonment that the Court imposed on each of the gun counts (Counts 1 and 2).
Amuda appealed and his attorney filed abrief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Seventh Circuit dismissed Amuda's appeal on December 14, 2005. See United States v. Amuda, 160 Fed.Appx. 476, 478 (7th Cir. 2005) (unpublished).
Amuda filed his § 2255 habeas petition on January 17, 2006. He argues that the Court should vacate, set aside, or correct his convictions and sentences because his counsel was ineffective. According to Amuda, his guilty plea was involuntary and not made with his understanding of the charges and consequences of his plea. He also claims that his sentence is unreasonable in light of Booker and that the disparity between crack and powder cocaine resulted in too great a sentence. He further argues that the PSR erroneously used an uncounseled prior conviction to increase his Criminal History. Finally, Amuda contends that he was coerced to accept the Joint Agreement by his attorneys and that his attorneys failed to investigate exculpatory evidence.
In order to warrant relief under § 2255 for an issue which was not raised at trial or on direct appeal, a petitioner must show good cause excusing his failure to raise the issue at the proper time and actual prejudice resulting from the errors of which he complains. See United States v. Frady, 456 U.S. 152, 167-68 (1982). Unless both "cause" and "prejudice" are shown, a prisoner is barred from raising such issue in a § 2255 motion. See Mankarious v. United States, 282 F.3d 940, 943 (7th Cir. 2002).
As the Court stated above, Amuda's claims that trial counsel was ineffective, counsel failed to investigate exculpatory evidence, the guilty plea was involuntary, the sentence is unreasonable, the PSR erroneously used an uncounseled prior conviction to increase his Criminal History, and Amuda was coerced to accept the Joint Agreement by his attorneys. The Court considers each claim in turn.
To show ineffective assistance of counsel, a petitioner must establish: (1) his counsel's performance was deficient; and (2) that this deficiency prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, a petitioner must demonstrate that his counsel's representation fell below an objective standard of reasonableness and that but for his counsel's unprofessional error, the result would have been different. Id. at 694. In evaluating the performance prong, a court must give great deference to the attorney's performance. Id. at 687.
Amuda's petition argues that his guilty pleas were involuntary and unknowing because of trial counsels' ineffectiveness. Amuda claims his attorneys coerced his pleas. He also alleges that they failed to: file pretrial motions; confer, consult and work with him; understand his factual and legal theories; investigate the facts and the law related to his case; ...