The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is petitioner Antonio A. Donaby's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1), to which the government has filed a response (Doc. 17), and petitioner a reply (Doc. 22). Petitioner was assisted by counsel in preparing his original motion, but subsequently received approval of the Court to proceed pro se, and thereafter filed two supplemental pleadings. (Docs. 4 & 5). All pleadings have been considered by the Court in reaching its decision.
On January 28, 2002, petitioner was convicted of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2, and of using a firearm during a crime of violence in violation of 18 U.S.C. §§ 924(c)(1) and 2. See Case No. 3:01-cr-30103-WDS. On July 31, 2002, petitioner filed a motion for new trial, which was denied by the Court on August 6, 2002. On August 7, 2002, he was sentenced to 144 months' imprisonment on the armed robbery count, and to 84 months' imprisonment on the firearm count, the sentences to run consecutively, five years' supervised release, restitution in the amount of $48,539.14, and a special assessment of $200.00. That same day, petitioner filed a timely notice of appeal. In his appeal, petitioner argued, first, that it was improper for the district court to include the repair cost of the stolen getaway vehicle used in the robbery to increase the loss assessed under the Sentencing Guidelines thereby increasing his relevant offense level, and second, that the district court erred in awarding restitution for damage to a police car involved in the chase that followed the robbery. These arguments were rejected by the Court of Appeals, and petitioner's sentence was affirmed on November 21, 2003. See United States v. Donaby, 349 F.3d 1046 (7th Cir. 2003).
In his motion (Doc. 1), his first supplement thereto (Doc. 4), and his second supplement thereto (Doc. 6), petitioner raises two grounds for relief: (1) that his trial counsel was ineffective for failing to properly investigate the testimony of petitioner's alibi witnesses, (2) that petitioner's choice to proceed with his trial counsel was not made freely and voluntarily; (3) that appellate counsel was ineffective for failing to file a notice of appeal of petitioner's motion for new trial, (4) that trial counsel prejudiced petitioner by representing conflicting interests in relation to petitioner's alibi defense; (5) that petitioner's counsel was ineffective at sentencing for failing to object to enhancements under the Sentencing Guidelines; and (6) that the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), invalidates his sentence. Because petitioner was sentenced in 2002, and the Seventh Circuit has ruled that Booker does not apply retroactively, petitioner's sixth ground for relief was previously dismissed by the Court (Doc. 10), and only the first five grounds remain for the Court's consideration.
Grounds for relief pursuant to 28 U.S.C. § 2255 are more limited than grounds for relief on direct appeal. See Massaro v. United States, 538 U.S. 500, 504 (2003). Specifically, there are three issues that a § 2255 motion cannot raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that were not but could have been raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, absent a showing either of good cause for the procedural default and actual prejudice stemming from the alleged error, or that the district court's failure to consider the claim would result in a fundamental miscarriage of justice. McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996); Degaglia v. United States, 7 F.3d 609, 611 (7t Cir. 1993); Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), rev'd on other grounds, Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). The cause and prejudice test applies both to defendants who collaterally attack a conviction following trial, and to defendants who are sentenced after a guilty plea and subsequently attack their sentence by raising new issues for the first time under § 2255. Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989).
(1). Petitioner Cannot State a Successful Claim of Ineffective Assistance of Counsel Relating to Mr. Herman
Petitioner claims he received ineffective assistance of counsel at trial because his attorney chose not to use four alibi witnesses who petitioner claims would testify that petitioner was elsewhere at the time of the bank robbery. Petitioner made this same argument in his motion for a new trial, but did not raise it on appeal. However, an ineffective assistance of counsel claim may be brought in a collateral proceeding under § 2255 even though petitioner could have, but did not raise the issue on direct appeal. Massaro v. United States, 538 U.S. 500, 508 (2003).
In reviewing a claim of ineffective assistance, the Court will apply the familiar two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): First, the petitioner must prove that his counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that but for counsel's deficiency, there is a reasonable probability that the outcome would have been different. Id. at 694. The defendant bears a heavy burden in showing that his counsel was ineffective and that his defense was actually prejudiced. United States v. Holland, 992 F.2d 687, 691 (7th Cir. 1993).
Petitioner claims that his counsel at trial, attorney Robert Herman, failed to properly investigate his claims of an alibi, and should have called four alibi witness at trial. When filing his motion for new trial, petitioner attached the affidavits of four witnesses, Donna Durden, Deloris Bonner, Andrew Weston, and Deana Smith, all of which state they saw the petitioner in front of his sister's home at 601 West Field Court in Belleville, Illinois, at approximately 9 a.m. on the morning in question and that they were willing to testify but were not asked to do so. (Doc. 17-2). Petitioner argues that these statements show that it was physically impossible for him to have been present at the First Federal Savings Bank of Mascoutah, located in New Baden, Illinois, at 8:50 a.m., the time of the alleged robbery.
Mr. Herman states in his affidavit that he hired an investigator to look into petitioner's alibi. The investigator questioned the witnesses listed above and based on his findings, Mr. Herman determined that these four witnesses could not provide evidence that would be probative of petitioner's innocence. In response, petitioner filed four new affidavits from the four alibi witnesses, stating that the investigator either never questioned them, or did not question them regarding petitioner's whereabouts on the morning of the robbery. (Doc. 22-2).
Despite petitioner's claims and the new affidavits of the four alibi witnesses, the Court has no reason to doubt the sworn affidavit of Mr. Herman, who is an officer of the court. The Court FINDS that Mr. Herman properly investigated petitioner's alibi defense and acted appropriately in framing his trial strategy. Petitioner cannot sustain an ineffective assistance of counsel claim on the basis of a strategic or tactical decision. United States v. Taglia, 922 F.2d 413, 417-18 (7th Cir. 1991).
Further, petitioner cannot show prejudice because he cannot show a "reasonable probability" that his attorney's performance affected the trial's outcome," Strickland, 466 U.S. at 694, rendering the trial and sentencing fundamentally unfair, or the result unreliable. Lockhart v. Fretwell, 506 U.S. 364 (1993). The crime took place at approximately 8:50 a.m., the petitioner was apprehended thereafter after he fled on foot following a high speed vehicle chase that covered many miles. Petitioner was driving a van believed to have been used in the robbery, and possessed a helmet and mask which were identified as having been used in the robbery. Two co-conspirators testified at trial that petitioner was the leader and organizer of the robber. Other evidence adduced at trial also tended to show that petitioner was the perpetrator of the robbery. Based on the plethora of evidence against him, the Court FINDS that petitioner cannot show a reasonable probability that four alibi witnesses who ...