The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before the court on the motion of Johnbull Osagiede to vacate, correct, or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied. Although Osagiede has requested a hearing on his motion, because the motion, files, and records of his case conclusively show that he is not entitled to relief under § 2255, no evidentiary hearing is necessary.
In March 2003, Osagiede, a Nigerian citizen, was charged in a four-count indictment. Count One alleged that he conspired with two others to distribute more than 100 grams of heroin; the remaining three counts pertained to alleged distribution on specific dates. Osagiede subsequently pled guilty to one of the latter counts. He admitted selling approximately 25 grams of heroin in exchange for $3000. Osagiede made this admission both in a written plea agreement and verbally during his colloquy with the judge who presided over his change of plea.
The parties agreed that Osagiede did not have any prior offenses that would contribute to his criminal history. However, they did not agree on many facts germane to the calculation of his offense level. According to the government's position, Osagiede's offense level was 32, yielding a presumptive guideline range of 121-151 months' imprisonment. Osagiede contended that his base offense level was 18 and that he should receive a three-level reduction for acceptance of responsibility, lowering the offense level to 15 and yielding a guideline range of 18-24 months. The plea agreement stated that the final sentence would be determined by the sentencing judge only and that the judge would not be bound to follow the calculations set forth in the agreement.
During the in-court colloquy that preceded the judge's acceptance of Osagiede's plea of guilt, Osagiede acknowledged under oath that no one had made him any promises or assurances outside of the plea agreement to induce him to plead guilty. Government Exh. B, p. 7, ll. 19-22. He also expressed his understanding that final determination of the applicable range would be made by the judge after preparation of a presentence report. Id., p. 10, ll. 21-25, p. 11, ll. 1-25, p. 12, ll. 1-6. Lastly, he stated his recognition of the possibility that his sentence would be more than what he expected to receive at the time of his change of plea. Id., p. 8, ll. 12-25, p. 9, ll. 1-4.
The presentence report supported the government's calculation of Osagiede's offense level. At his sentencing hearing, he objected, through counsel, to the conclusions within the report. The judge heard testimony on that issue and ultimately concluded that Osagiede had been involved in distribution of 1.3 kilograms of heroin, placing his base offense level at 32. The sentencing was continued to allow briefing of additional issues. Once the briefing was complete and all arguments presented had been considered, this court handed down a sentence of 97 months.
Though the plea agreement did not include a waiver of appellate rights, Osagiede chose not to appeal his sentence to the Seventh Circuit. Within one year after the judgment of conviction became final, Osagiede filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Section 2255 permits a prisoner to "move the court which imposed the sentence to vacate, set aside, or correct the sentence" on the grounds 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 a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" Such collateral relief is only available, however, where there was "an error of law that is jurisdictional, constitutional, or constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). In evaluating a § 2255 petition, the district court must review the record and draw all reasonable inferences in favor of the government. Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992). We note, however, that Osagiede has filed his petition pro se and thus it is entitled to a liberal reading. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972).
Osagiede's petition raises three issues for review. First, he contends that his attorney rendered ineffective assistance by inducing him to plead guilty with a promise that he would receive a sentence of 18 months' incarceration. Second, he claims his counsel provided ineffective assistance by failing to object to the amount of heroin attributed to him in the presentence report. Third, he attests that his attorney's failure to press for dismissal of the indictment based on alleged violations of Article 36 of the Vienna Convention fell below the standard of professionally acceptable behavior.
A. Ineffective Assistance of Counsel During Plea Negotiations
Osagiede has attached to his motion an affidavit wherein he states that he wished to go to trial but changed his mind only after his attorney assured him that he would receive a sentence of 18 months, based only on the 25-gram amount to which he admitted in his plea agreement. He insists that he lied during his Rule 11 colloquy pursuant to his attorney's admonition that he would not receive the 18-month sentence she supposedly promised him if he alerted the judge to their arrangement. This statement contradicts his sworn testimony during the plea colloquy ...