The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge
MEMORANDUM OPINION AND ORDER
The present matter is before the Court on remand from the Seventh Circuit to determine whether Petitioner Saidi Kafo requested his trial counsel to appeal his sentence at the conclusion of his criminal proceedings before the Court. See Kafo v. United States, 467 F.3d 1063 (7th Cir. 2006). On remand, Kafo filed an amended motion under 28 U.S.C. § 2255 with an attached affidavit averring that he had asked his attorney to appeal his sentence and his attorney failed to do so. The Court subsequently granted Kafo an evidentiary hearing. Based on the testimony and documents submitted at the evidentiary hearing, the Court concludes that Kafo did not request his attorney to appeal his sentence. Therefore, the Court denies Kafo's amended motion pursuant to 28 U.S.C. § 2255.
I. Kafo's Original Section 2255 Motion
On November 14, 2003, Kafo pleaded guilty to three counts of uttering a forged and counterfeit security, in violation of 18 U.S.C. § 513(a). On March 25, 2004, the Court sentenced Kafo to 48 months incarceration. Kafo never directly appealed his sentence. Instead, on February 4, 2005 -- almost a year later -- Kafo filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Kafo then filed a motion to amend his Section 2255 motion on April 12, 2005, which the Court granted. Construing Kafo's pro se Section 2255 motion liberally, see Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006), his amended petition asserted the following claims: (1) his trial counsel was constitutionally ineffective for failing to file an appeal after Kafo requested him to do so; and (2) his sentence was invalid based on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Specifically, Kafo asserted that his sentence was invalid because a jury did not determine -- beyond a reasonable doubt -- the facts that led to his sentencing guideline range. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Supreme Court concluded that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 543 U.S. at 244. The Seventh Circuit, however, concluded that Booker is not retroactive on collateral review and thus "Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005." McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005). Because Kafo's conviction and sentence became final beforethe Booker decision, the Court concluded that Booker could not form the basis for Section 2255 relief under the circumstances.
Next, Kafo claimed that his trial attorney provided constitutionally ineffective assistance of counsel because he failed to appeal Kafo's sentence even though Kafo had requested him to do so. Indeed, the Seventh Circuit has held that an attorney's "failure to take an appeal, despite the defendant's request, is ineffective assistance without regard to the probability of success on appeal." Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994); see also Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). The Court, however, denied Kafo's Castellanos claim without an evidentiary hearing because Kafo failed to present an affidavit swearing that he had expressed his desire to appeal to his trial counsel. Further, Kafo did not sign his Section 2255 motion under oath. The Court also denied Kafo's certificate of appealabilty. See 28 U.S.C. § 2253(c)(2).
The Seventh Circuit granted Kafo's certificate of appealability on the issue of whether counsel was constitutionally ineffective for failing to file an appeal. See Kafo, 467 F.3d at 1065. The Seventh Circuit reviewed the Court's decision denying Kafo's request for an evidentiary hearing concluding that the Court did not abuse its discretion because Kafo failed to present a "specific affidavit which shows that the petitioner had actual proof of the allegations beyond mere unsupported assertions." Id. at 1067 (citation omitted). The Seventh Circuit, however, concluded that the better practice -- as suggested by the Advisory Committee Notes to the 2004 Amendments to Rule 2 of the Rules Governing Section 2255 Proceedings for the United States District Courts -- was to instruct Kafo to amend his Section 2255 motion by submitting his motion under oath or by attaching an affidavit. Id. at 1070. Accordingly, the Seventh Circuit vacated the Court's decision "in order to permit that court to afford the petitioner an adequate opportunity to submit a verified version of the amended complaint or a supplemental affidavit." Id. at 1071.
On March 7, 2007, Kafo, by counsel, submitted an amended motion under Section 2255 along with a signed and sworn affidavit. On May 11 and 15, 2007, the Court held an evidentiary hearing to determine whether Kafo had requested that his trial attorney appeal his sentence.
A district court must grant a Section 2255 motion to vacate, set aside or correct a sentence under Section 2255 when a petitioner establishes "that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Hays v. United States, 397 F.3d 564, 566-67 (7th Cir. 2005) (citations and quotations omitted). It is well-established that "a motion under § 2255, like a petition for a writ of habeas corpus, is not a proceeding in the original criminal prosecution but an independent civil suit." Heflin v. United States, 358 U.S. 415, 418 n.7, 79 S.Ct. 451, 453, 3 L.Ed 407 (1959) (internal citation omitted); McCartney v. United States, 311 F.2d 475, 476 (7th Cir. 1963) ("proceedings  under Section 2255 are not a part of an original criminal action but are an independent and collateral inquiry into the validity of the conviction."). Accordingly, "[t]o sustain his motion made under [Section] 2255, the burden of proof was on the [petitioner] to establish by a preponderance of the evidence that he had been deprived of some right under the Constitution." See Hearn v. United States, 194 F.2d 647, 649 (7th Cir. 1952).
Counsel's failure to file a notice of appeal despite a criminal defendant's request to do so is constitutionally ineffective assistance of counsel without regard to the probability of the appeal's success. Castellanos, 26 F.3d at 719. In reaching this conclusion, the Castellanos court explained:
"Request" is an important ingredient in this formula. A lawyer need not appeal unless the client wants to pursue that avenue. Moreover, as we held in United States v. Mosley, 967 F.2d 242 (7th Cir. 1992), the Constitution does not require a lawyer to advise the client of the right to appeal. That duty rests principally on the judge -- and even if both judge and counsel forget to provide this advice, most defendants know about the possibility of appeal and cannot complain if they are not furnished redundant information. "Counsel will not be found ineffective per se for failure to appeal an appealable judgment." Oliver v. United States, 961 F.2d 1339, 1342 (7th Cir. 1992). Only a failure to appeal a judgment that the defendant desires to appeal is problematic. Id. Because a defendant cannot prove prejudice under the Strickland standard if there is no counsel in the first instance, the Castellanos court held that "[i]f the defendant told his lawyer to appeal, and the lawyer dropped the ball, then the defendant has been deprived, not of effective assistance of counsel, but of any assistance of counsel ...