The opinion of the court was delivered by: Joe Billy McDade United States District Judge
Before the Court is Petitioner, Levence Simpson's ("Simpson") Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person in Federal Custody [Doc. #1] and Additional Facts and Memorandum in Support of § 2255 Petition [Doc. #2]. For the reasons that follow, Simpson's § 2255 Motion will be DENIED.
In August 2001, Simpson was indicted on three counts of drug related charges. In count one, he was charged with a drug conspiracy involving more than one kilogram of heroin and fifty grams of cocaine base (crack) that allegedly resulted in a death. See 21 U.S.C. § 846. This subjected him to a statutory mandatory minimum sentence of ten years to life, which would be increased to twenty years to life if the death was proven. See 21 U.S.C. § 841(b)(1)(A). In counts two and three, Simpson was charged with possession with the intent to distribute crack cocaine and heroin, subjecting him to statutory maximum sentences of twenty years. See 21 U.S.C. § 841(b)(1)(C).
In September 2001, the Government served Simpson's trial attorney, Arthur Inman ("Inman"), with a notice pursuant to 21 U.S.C. § 851, indicating its intent to seek an enhanced sentence based on Simpson's prior felony drug conviction from 1993. In turn, this subjected Simpson to a mandatory life sentence on count one, and statutory maximum sentences of thirty years on counts two and three.
In the face of these possibilities, Simpson professed his innocence and went to trial. Eventually, a jury found him guilty on all three counts but did not find that the conspiracy resulted in a death. As a result, Simpson no longer faced a mandatory life sentence on count one but, instead, faced twenty years to life in prison. Accordingly, on October 21, 2002, Simpson was sentenced to 240 months on the conspiracy charge (count one), and concurrent 235-month terms on the two possession charges for crack cocaine (count two) and heroin (count three).
After unsuccessfully appealing his conviction and sentence to the Seventh Circuit Court of Appeals, see United States v. Simpson, 337 F.3d 905 (7th Cir. 2003), Simpson filed the instant § 2255 Motion on October 22, 2004. All but two of his grounds for relief have been previously decided by Order of this Court.
See [Ct. Order of July 13, 2005, Doc. #29]. As a result, an evidentiary hearing was conducted on October 13, 2005, concerning the two remaining issues: (1) whether Inman rendered ineffective assistance of counsel by failing to reasonably investigate whether the 1993 Peoria County felony drug conviction belonged to Simpson, and by failing to apprise him of both the consequences that a prior felony drug conviction would have on his sentence and of the fact that the Government intended to enhance his mandatory minimum sentence pursuant to § 851; and (2) whether Inman rendered ineffective assistance of counsel by advising Simpson to reject a plea agreement allegedly proposed by the Government.
Claims of ineffective assistance of counsel are governed by the 2-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on his ineffective assistance of counsel claims, Simpson must first show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. In doing so, Simpson has a heavy burden to overcome because courts must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 690.
Furthermore, it is insufficient to simply prove that counsel's representation was constitutionally deficient; Simpson must also prove that he suffered prejudice as a result thereof. Id. at 694. In other words, Simpson must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Therefore, to understand just how difficult it is to make out an ineffective assistance of counsel claim, all one need do is review cases in this circuit in which the 2-prong test has not been met. See, e.g., United States v. Cieslowski, 410 F.3d 353, 359 (7th Cir. 2005).
To begin with, in his § 2255 Motion, Simpson argued that the 1993 Peoria County felony drug conviction in question was not his but, instead, belonged to another person named "Leola Simmons". However, at the start of the evidentiary hearing, Simpson admitted that "Leola Simmons" was simply his alias and that the 1993 felony drug conviction in question was indeed his. [Doc. #55, Evid. Hearing Tr. pgs. 3-8]. Of course, this confession did not come until after the Government threatened to call a fingerprint expert to the stand to testify that Simpson's fingerprints matched that of the individual named Leola Simmons. Therefore, Inman cannot be said to have rendered ineffective assistance of counsel by failing to investigate whether the prior felony drug conviction belonged to Simpson --- since indeed, it did.
The Court must also point out that since the remaining issues to be decided are simply matters of "he say - she say," the veracity of the parties and witnesses are of key importance. Thus, Simpson's attempt to purposely mislead this Court into believing that the 1993 felony drug conviction was not his, at least until threatened with ...