The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
On September 10, 2004, Petitioner filed a Motion for Leave to File a self contained Amended § 2255 Motion. [Doc. 20.] This Court Granted Petitioner's Motion for Leave to File. However, Petitioner never followed up by filing an Amended 2255 Motion. Nevertheless, Respondent assumed that Petitioner's self contained Motion for Leave to File constituted the actual amended complaint and accordingly filed a Response. [Doc. 28] Petitioner never filed a reply to the response or an amended motion. As a result, with no actual amended motion filed, this case has sat on this Court's docket for over a year. Accordingly, on December 5, 2006, rather than dismiss this case for want of prosecution, out of an abundance of caution, this Court ordered that Petitioner's earlier self contained motion of September 10, 2004, be filed nunc pro tunc as his amended motion for section 2255 relief. [Doc. 30.] This Court will now address the merits of the section 2255 motion. For the reasons that follow, Petitioner's Motion is DENIED.
On May 18, 2000, Espinoza was indicted in the Central District of Illinois. Espinoza was charged with the following crimes: Count 1, racketeering, in violation of 18 U.S.C. § 1962(c); Count 2, conspiracy to commit racketeering, in violation of 18 U.S.C. § 1962(d); Count 5, conspiracy to distribute and possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846; Count 6, unlawful possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2); and Count 7, using and carrying a firearm or dangerous device, during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (c)(1)(B)(ii) and (2). Espinoza was found guilty by a jury on all these counts on November 6, 2001.
On March 1, 2002, Espinoza was sentenced to 240 months of imprisonment on each of Counts 1 and 2 to run concurrently with each other; 60 months on Count 5 to run concurrently with sentences imposed on Counts 1 and 2, 120 months on Count 6 to run concurrently with the sentences imposed on Counts 1, 2 and 5; and 360 months on Count 7 to run consecutively to the sentences imposed on all previous counts. Espinoza was further sentenced to 3 years of supervised release on each of Counts 1-7 to run concurrently with each other.
Espinoza appealed his sentence which was affirmed on appeal to the Seventh Circuit Court of Appeals on January 27, 2003. A Petition for Writ of Certiorari was denied by the United States Supreme Court on May 30, 2003.
Espinoza now seeks relief under 28 U.S.C. § 2255. Espinoza claims he was denied effective assistance of Counsel during his pre-trial, trial and appellate litigation. Specifically, Espinoza claims: (1) Counsel failed to object to sentencing enhancements based on facts not determined by a jury, (2) Counsel failed to suppress the playing of recordings that were illegally obtained, (3) Counsel failed to seek scientific evidence to show that the voice on the aforementioned tapes was not that of Espinoza, (4) The playing of the tape violated Espinoza's Sixth Amendment right to confrontation, (5) Counsel failed to obtain appropriate jury instructions, (6) Counsel improperly conceded facts critical to the defense during argument to the jury, (7) Counsel failed to seek relevant portions of the transcript for purposes of appeal and Counsel therefore failed to submit judicious arguments on appeal as a result.
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, Espinoza must first show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. In doing so, Espenoza 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; Espinoza must also prove that he suffered prejudice as a result thereof. Id. at 694. In other words, Espinoza 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.
1. Counsel was not Ineffective for a failure to object to sentence enhancements not submitted to a Jury.
Espinoza claims that the Court improperly used facts not submitted to a jury or admitted by defendant under Apprendi v. New Jersey, 530 U.S. 466 (2000) and Counsel was ineffective for failing to object. First and foremost it should be noted that Espinoza fails to submit what facts were used to enhance his sentence that were not submitted to a jury (or alternatively admitted to by Espinoza) and fails to show how he was prejudiced by the improper consideration of the facts in his sentencing. Given this, Espinoza's first claim fails both prongs of the Strickland test on this alone. Beyond that, the holding of Apprendi as extended to the Sentencing Guidelines by Blakely v. Washington, 542 U.S. 296 (2004) was effectively overruled by United States v. Booker, 543 U.S. 220 (2005). Booker changed the Sentencing Guidelines from mandatory to advisory and in so doing avoids the Sixth Amendment problem. Since the guidelines are not mandatory, they do not have the force of law and therefore facts need not be proved to a jury. The Court in Booker recognizes the, "authority of a judge to exercise broad discretion in imposing a sentence," and that the Guidelines, "as merely advisory provisions . would not implicate the Sixth Amendment." Id at 233. Therefore, the consideration of the additional factor in sentencing would be within the Court's discretion and would not violate the Sixth Amendment.
Furthermore, Respondent contemplates in their Response that Espinoza's objection could be to the Court's consideration of Espinoza's status as a leader of the underlying criminal activity. (Doc 28 at 10.) Assuming that this is the fact Espinoza objects to, his claim still fails on numerous grounds. First, there is evidence that Espinoza admitted his leadership position. (Tr at 105.) Second, Counsel did object to the leadership enhancement. It is obvious that Counsel cannot be ineffective for failing to object when in fact Counsel did object. Finally, the Court previously found at the sentencing that even if the objection were sustained that the sentence ...