The opinion of the court was delivered by: J. Phil Gilbert United States District Judge
This matter comes before the Court on Bradley G. White's motion to vacate and set aside his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). The government has responded to White's motion. (Doc. 6). For the following reasons White's § 2255 motion will be DENIED.
A jury found White guilty of maintaining a place to manufacture drugs, 21 U.S.C. § 856(a)(1), attempting to manufacture more than 50 grams of a mixture or substance containing methamphetamine, 21 U.S.C. 841(a)(1), 846, and possession of a firearm by a felon, 18 U.S.C. § 992(g)(1). The Court initially sentenced White to 135 months' imprisonment on each count. The Seventh Circuit Court of Appeals vacated White's 135-month sentence on the firearm conviction and remanded to this Court for resentencing. After receiving the Seventh Circuit's mandate, the Court sentenced White to concurrent sentences of 120 months on the firearm charge and 108 months on the other two charges. White did not appeal a second time.
White raises five grounds in support of § 2255, which are all at least partially based on ineffective assistance of counsel. First, he claims counsel for the government, Robert Simpkins, committed prejudicial misconduct by asking him whether the government's witnesses were liars. He contends his attorney, John Delaney, should have objected to Simpkins's questions. Second, White claims Simpkins improperly commented on his failure to call witnesses to disprove the government's case. White argues that Delaney's failure to object to these questions was constitutionally ineffective assistance. Third, White contends that Delaney failed to file a notice of appeal as he requested. Fourth, White maintains that Delaney erred when he questioned him on the stand about his prior convictions after stipulating to his status as a convicted felon before trial. He also thinks Delaney should have objected when Simpkins addressed these convictions on cross-examination. Finally, White claims Delaney should have objected to the introduction of evidence resulting from the execution of a search warrant he believes was unconstitutional.
The Court must grant a § 2255 motion when a petitioner's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. "Habeas 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), and 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) (internal quotation marks omitted).
To succeed on his ineffective assistance claims, White must show that his counsel's performance "fell below an objective level of reasonableness" and that his 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)). White bears the "heavy burden" of showing that counsel's performance fell well outside the range of professionally competent representation.
United States v. Moya-Gomez, 860 F.2d 706, 763 (7th Cir. 1998). In determining whether counsel's performance was unreasonable, this Court must defer to his decisions and entertain a presumption that he acted reasonably. United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997). It must look at his actions "in the context of the case as a whole, viewed at the time of the conduct, and [entertain] a 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 quotation marks omitted). It is not the Court's place to "second guess [counsel's] strategic choices." Williams, 106 F.3d at 1367.
To demonstrate the requisite prejudice, White 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. Valenzuela, 261 F.3d at 699. 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).*fn1
I. Failure to File Notice of Appeal
On February 23, 2007, the Court held an evidentiary hearing on the issue of whether White timely requested Delaney to file a notice of appeal. At the hearing, the Court heard testimony from both White and Delaney. Delaney's testimony was credible and White's was not. For this reason, the Court found that White did not ask Delaney to file a notice of appeal.*fn2
II. Prosecutorial Misconduct: Questions as to the Credibility of Witnesses
Courts use a two-step inquiry when evaluating claims for prosecutorial misconduct. First, they determine whether the comments, viewed in isolation, were improper. United States v. McKee, 389 F.3d 697, 699 (7th Cir. 2004). If the remarks were improper, courts "consider whether the statements taken in the context of the entire record deprived the defendant of a fair trial. In other words, [they] ask whether the misconduct caused the jury to reach a verdict of guilty when otherwise it would have reached a verdict of not guilty." Id. (internal citations and quotation marks omitted); see alsoUnited States v. Morgan, 113 F.3d 85, 89 (7th Cir. 1997). In making this determination, this Court must consider: the nature and seriousness of the statement; whether the statement was invited by the conduct of defense counsel; whether [it] sufficiently instructed the jury to disregard such statements; whether the defense could counter the improper statement through rebuttal; and finally, whether the weight of the evidence was against the defendant. United States v. Severson, 3 F.3d 1005, 1014 (7th Cir. 1993). The Court must place "considerable emphasis on (1) the curative effect of jury instructions, including the trial court's direct admonition that the arguments of the attorneys are not to be considered evidence, and (2) the weight of the evidence of guilt contained in the entire record." McKee, 389 F.3d at 699.
White chose to testify on his own behalf at trial. On cross-examination, Simpkins asked him the following questions:
Q: You sat here and you listened to everything that Angie Pheiffer said on the witness stand. She came in and she swore under oath. No promises made to her, nothing. It's your testimony that everything she testified to is not true?
Q: You heard Peggy Moritz come in hear and testify under oath. . . . And everything she said was not the truth?
Q: So [James Heath] comes in here. . . . He says about you giving him drugs and everything and making meth . . . . ...