The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Arlando Henson's ("Henson")*fn1 amended motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 13). The government responded to the motion (Doc. 20). The Court also considers Henson's motion for appointment of counsel (Doc. 4).
I. Motion to Appoint Counsel (Doc. 4)
Whether to appoint an attorney to represent an indigent § 2255 petitioner is within the sound discretion of the district court. Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997). There is absolutely no right to appointment of counsel case unless the absence of counsel would result in fundamental unfairness impinging on due process rights, Winsett, 130 F.3d at 281 (citing LaClair v. United States, 374 F.2d 486, 489 (7th Cir. 1967)); see 18 U.S.C. § 3006A(a)(2)(B) ("Whenever . . . the court determines that the interests of justice so require, representation may be provided for any financially eligible person who . . . is seeking relief under section . . . 2255 of title 28."). Counsel is required to be appointed only "'if, given the difficulty of the case and the litigant's ability, [the petitioner] could not obtain justice without an attorney, [he] could not obtain a lawyer on [his] own, and [he] would have had a reasonable chance of winning with a lawyer at [his] side.'" Id. (quoting Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997)). The Court also has inherent authority to appoint counsel to ensure the orderly prosecution of litigation in the district.
After reviewing Henson's petition, the Court finds that Henson is well able to articulate the contours of his arguments and obtain justice without an attorney and, further, that the absence of counsel will not result in an unfair proceeding impinging on Henson's due process rights. In essence, the results would be no different had Henson had counsel. Accordingly, the Court will deny Henson's motion for appointment of counsel (Doc. 4).
In August 2005, Henson was indicted on one count of possessing a firearm after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Henson was represented at the trial level by Assistant Federal Public Defender Melissa Day ("Day").
In January 2006, Henson pled guilty to the charge without a plea agreement. During the plea colloquy, the government set forth the evidence it would be able to produce at trial to show that Henson was a convicted felon who possessed the firearm listed in the indictment. Essentially, the government would present testimony that Henson removed an item wrapped in a bed sheet from the residence of his step-father and placed the wrapped item in the trunk of a car. It would also present testimony that Henson told Kyna Sanders ("Sanders") there was something under her bed and that she should not touch it. The police discovered under Sanders's bed a firearm that had been reported stolen from Henson's step-father, wrapped in a bed sheet with Henson's fingerprint on it.*fn2 After the government described the evidence it would present at trial, Henson admitted that he possessed the firearm and that he was guilty of the offense, although he did not agree with some of the specific details of the testimony the government was prepared to present. Day also indicated that Henson was admitting that he possessed the firearm in question but that he did not agree with everything every witness had said. The Court assessed that there had been no threats or promised made to Henson in order to induce him to plead guilty and that Henson was pleading guilty as his own free and voluntary act. It then found that there was a factual basis for Henson's guilty plea and accepted that plea.
Henson's Presentence Investigation Report's ("PSR") found that under United States Sentencing Guideline*fn3 ("U.S.S.G.") § 2K2.1(a)(4) his base offense level was 20, that under U.S.S.G. § 2K2.1(b)(4) he was subject to a two-level enhancement because the firearm he possessed was stolen, and that under U.S.S.G. § 3E1.1(a) and (b) he was entitled to a three-level reduction for acceptance of responsibility, yielding a total offense level of 19. The PSR further found that Henson's criminal history put him into category II and that his guidelines sentencing range was 33 to 41 months. This sentence fell within the statutory range of no more than ten years for violations of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
On May 4, 2006, the Court held a sentencing hearing at which Henson did not object to the PSR.*fn4 Day asked the Court to sentence Henson to the low end of the guideline range because his unlawful possession of the firearm was for a very short period of time. The Court adopted the PSR and sentenced Henson to serve 33 months in prison. Henson did not appeal his conviction.
Henson filed this timely § 2255 motion on June 19, 2006. After filing several supplements to his original motion, he filed an amended motion incorporating his supplemental arguments at the Court's direction on November 6, 2006. In it, Henson asks the Court to vacate his conviction and sentence because (1) he was not in "immediate possession or control" of the firearm in question, (2) the firearm was recovered in another person's residence when Henson was not present, (3) Henson did not have sole possession of the firearm because he was not on the lease of the residence where the firearm was found, (4) there was no "substantial duration of possession" by Henson and (5) his attorney did not adequately investigate the facts of his case to discover the foregoing facts and instead encouraged him to plead guilty.
In response to Henson's arguments regarding his possession of the firearm in question, the government argues that he has waived those arguments by not raising them on direct appeal and failing to show cause for and prejudice from his failing to do so. As to the substance of those arguments, the government argues that Henson's conviction is supported by his admission under oath at the plea hearing that he possessed the firearm, by the evidence showing that he had possession -- actual, constructive, sole or joint -- over the firearm and by his implicit admission in his § 2255 motion that he had possession of the firearm but for an insubstantial duration. With respect to Henson's ineffective assistance of counsel argument, the government argues that Day's investigation into the facts and the law was excellent and well within the range of reasonably competent counsel. The government has submitted an affidavit from Day regarding her and her office's work on Henson's case.
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[h]abeas 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). "Relief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion ...