The opinion of the court was delivered by: Gilbert, District Judge
This matter is before the Court on petitioner Arlinda Johns' motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). Petitioner submitted a memorandum in support of her motion (Doc. 2) and a pleading she captioned a supplement of law (Doc. 4). The government has responded to these pleadings. (Doc. 10). Petitioner has also moved for leave to file a reply to the government's response (Doc. 11);she filed her reply before the Court ruled on the motion. The Court will GRANT the motion for leave and consider the reply timely. For the following reasons, petitioner's § 2255 motion will be DENIED.
On February 13, 2003, petitioner entered an open plea of guilty to a one-count indictment charging her with conspiracy to distribute at least five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). Petitioner was originally represented by retained counsel Paul Christenson. This Court granted Christenson's motion to withdraw and Federal Public Defender Melissa Day was appointed and took his place. After petitioner entered her plea, the United States Probation Office ("probation") prepared a Presentence Investigation Report ("PSR") setting forth her relevant conduct, which consisted of 270.37 grams of crack cocaine. The PSR recommended a two-level enhancement for possession of a weapon during the commission of the offense pursuant to U.S.S.G. § 2D1.1.(b)(1) (02-40055 Doc. 48). Petitioner objected to the two-level firearm enhancement (02-40055 Doc. 44), but withdrew it at sentencing. (Sent. Tr. at 3). Her relevant conduct rendered a base level offense of 34; she received the two-point enhancement for the firearm possession and she received a three-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b). Petitioner's total offense level was 33 (criminal history category II), making her guideline range 151 to 188 months. The Court sentenced petitioner to a term of imprisonment of 151 months, 5 years' supervised release, a $50 fine and $100.00 special assessment. (02-40055 Doc. 46).
Petitioner appealed her conviction. Believing her client's position to be frivolous, Day filed an appellate brief and moved to withdraw under Anders v. California, 386 U.S. 738 (1967). United States v. Johns, 79 Fed.Appx. 223, 224 (7th Cir. 2003). In her Anders brief, Day addressed whether petitioner could challenge the voluntariness of her guilty plea, whether she could challenge her sentence on the basis of the firearm enhancement (this issue was also raised in petitioner's Rule 51(b) response), whether the government's failure to move for a downward departure was irrational or discriminatory (also argued by petitioner to the appellate court) and whether petitioner received ineffective counsel. Id. at 224-26. Petitioner also argued in her Rule 51(b) response that she withdrew her objection to the firearm enhancement pursuant to the bad advice of Day. The Seventh Circuit did not address this issue believing it was best reserved for collateral attack. Id. at 225. Petitioner also challenged the determination of her relevant conduct in the PSR. The Seventh Circuit determined this argument to be frivolous because both petitioner and her attorney indicated at sentencing that they agreed with the PSR. Id. After considering the arguments made by counsel and petitioner, the Seventh Circuit dismissed the appeal. Id. at 226.
Having reviewed the briefs filed by the petitioner in this case, the Court finds that petitioner has stated eight grounds for relief in her § 2255 filings. She claims Day provided ineffective assistance of counsel by (1) failing to advise her of the consequences of withdrawing her firearm enhancement objection, (2) failing to object to perjured testimony by the Assistant U.S. Attorney, Amanda Robertson, (3) failing to challenge her relevant conduct, (4) failing to file motions for a downward departure, (5) failing to demand a downward departure for substantial assistance, and by (6) failing to present mitigating evidence at sentencing. She also claims her sentence is invalidated by (7) Apprendi and (8) Booker. The Court will address of each of these arguments in turn.
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Relief under § 2255 is available only if an error is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255.
A § 2255 motion does not substitute for a direct appeal. A defendant cannot raise in a § 2255 motion constitutional issues that she could have but did not raise in a direct appeal unless she shows good cause for and actual prejudice from her failure to raise them on appeal or unless failure to consider the claim would result in a fundamental miscarriage of justice. Massaro v. United States, 538 U.S. 500, 504 (2003); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. A defendant cannot raise in a § 2255 motion non-constitutional issues that she failed to raise on direct appeal regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000).
A § 2255 motion is also not necessarily a second chance at a successful appeal. The Court may refuse to consider issues in a § 2255 motion that a defendant raised on direct appeal where there are no changed circumstances of fact or law. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995); Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992). To succeed on her ineffective assistance of counsel claims, petitioner must establish that Day's performance "fell below an objective level of reasonableness" and that her error(s) prejudiced the outcome of the proceedings. United States v. Allender, 62 F.3d 909, 913 (7th Cir. 1995) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In addressing Day's performance, this Court should defer to her decisions and presume she acted reasonably. United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997). To show that her attorney's performance was objectively unreasonable, petitioner bears the "heavy burden" of showing that it fell well outside the range of professionally competent representation. United States v. Moya-Gomez, 860 F.2d 706, 763-64 (7th Cir. 1998). In reviewing her arguments on this score, the Court must consider the reasonableness of Day's actions "in the context of the case as a whole, viewed at the time of the conduct, and there is strong presumption that any decisions by counsel fall within a wide range of reasonable trial strategies." Valenzuela v. United States, 261 F.3d 694, 698-99 (7th Cir. 2001) (internal citations and quotations omitted). In determining whether Day's actions were reasonable, it is not the Court's place to "second guess strategic choices."
Williams, 106 F.3d at 1367.
To make her showing on the prejudice prong of the Strickland test, petitioner must show with a "reasonable probability" that without counsel's error the result of the proceeding would have been different and that the error made the proceeding unfair or unreliable. Id. at 699. In this context, a reasonable probability "is a probability sufficient to undermine confidence in the outcome." Emezuo v. United States, 357 F.3d 703, 708 (7th Cir. 2004) (quoting Strickland, 466 U.S. at 694). In evaluating these issues this Court must keep in mind that "the ultimate objective [of our legal system is] that the guilty be convicted and the innocent go free." Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996) (citation omitted). Finally, the Court need not evaluate both prongs of the Strickland test; "if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993) (quoting Strickland, 466 U.S. at 697).
Petitioner's first ineffective assistance claim relates to the dangerous weapon enhancement. Essentially, she claims Day provided ineffective assistance for failing to apprise her of the consequences of withdrawing her initial objection. As detailed in the PSR, petitioner received the enhancement under § 2D1.1 because her co-defendant, Lorenzo Erving ("Erving") told authorities that she had possessed .9mm and .38 caliber pistols during several drug deals at which he was present. While searching her residence, law enforcement found a box of .9mm shells and two .32 caliber shells. Thus, the PSR recommended the two-point enhancement. That petitioner had some problem with the inclusion of the firearm enhancement is evident from the fact that she initially lodged a complaint against its inclusion in the PSR. She believed then and believes now that Erving made the statements about the guns in retaliation for her setting him up. However, petitioner withdrew her objection to the gun enhancement at sentencing on Day's advice. Day told her that the government would not recommend the full three-level reduction for acceptance of responsibility if she did not withdraw her objection. Day explained that her guideline range without the full reduction would be 210 to 262 months, substantially higher than her eventual guideline range, 151-188 months. Petitioner ...