The opinion of the court was delivered by: Marvin E. Aspen United States District Judge
On June 24, 2004, petitioner Lemuel Tyra pled guilty on a single count of distributing 80.3 grams of crack cocaine in violation of 21 U.S.C § 841(a)(1). On May 19, 2005 -- after giving Tyra credit for his cooperation for prosecutors -- we sentenced him to, inter alia, 108 months in federal prison.
Tyra has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The motion alleges that counsel's assistance at trial and on appeal was deficient, depriving Tyra of his Sixth Amendment right to counsel. Tyra's claim for ineffective assistance of counsel rests on two asserted errors: 1) after Tyra's appeal was denied, counsel failed to petition the United States Supreme Court for a writ of certiorari; and 2) at the sentencing hearing -- and again on direct appeal -- counsel did not raise an objection to government arguments (in alleged violation of U.S. Sentencing Guidelines § 1B1.8) referencing Tyra's admitted criminal history. We deny both claims.
In considering a § 2255 motion, unless we find that the facts Tyra pleads and the exhibits he attaches to his motion are insufficient to entitle him to relief, we should order a hearing or alternative fact-finding. See 28 U.S.C. § 2255; Pittman v. Warden, Pontiac Correctional Center, 960 F.2d 688 (7th Cir. 1992); Blackledge v. Allison, 431 U.S. 63 (1977).
To support a claim for ineffective assistance of counsel, a petitioner must prove both the objectively deficient performance of his counsel and prejudice. Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must identify specific acts or omissions of counsel that "fell below an objective standard of reasonableness." Id. at 687. In this competence inquiry, "judicial scrutiny of counsel's performance must be highly deferential" and "every effort [must] be made to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from counsel's perspective at the time." Id. at 689. Second, Tyra must "affirmatively prove prejudice," by showing to "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693. A reasonable probability is a probability "sufficient to undermine confidence in the outcome." Id. at 695.
a. Counsel's Alleged Failure to Petition for Writ of Certiorari
Tyra claims that reasonably competent counsel would have filed -- as did counsel for another defendant in a similar case -- a petition for writ of certiorari with the Supreme Court with respect to the issues Tyra appealed to the Seventh Circuit. Compare Tyra v. United States, 454 F.3d 686 (2006), with Rita v. United States, 127 S.Ct. 551 (2006).*fn1 The Rita petition was filed three weeks after the Seventh Circuit denied Tyra's appeal, and the writ was granted a month after Tyra's period for petitioning the Supreme Court expired. Id. He claims counsel's failure to petition had a prejudicial effect on his direct appeal, because "there is a reasonable probability that the Supreme Court would have held his petition for Writ of Certiorari in abeyance and decided it in light of the merits of Rita." (Stmt. of Claim ¶ 47) This claim fails.
First, Tyra lacks a Sixth Amendment right to effective counsel in an appeal to the Supreme Court. The constitutional right to effective assistance of counsel is a manifestation of the Sixth Amendment right to counsel: where the latter is not present, neither is the former. Coleman v. Thompson, 501 U.S. 722, 752 (1991) ("Where there is no constitutional right to counsel there can be no deprivation of effective assistance."). Here, Tyra did not have a right to counsel beyond his first direct appeal. Since "[r]review on a writ of certiorari is not a matter of right, but of judicial discretion," Sup. Ct. R. 10 (2006), there is no right to counsel for filing a petition of certiorari.*fn2 See also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals."); Miller v. Keeney, 882 F.2d 1428 (9th Cir. 1989) (because petitioner "had no constitutional right to counsel in connection with the filing of a certiorari petition, he had no constitutional right to the effective assistance of counsel for that purpose."). In the context of a state discretionary appeal, the Supreme Court in Wainwright v. Torna, 455 U.S. 586 (1992), held that a petitioner could not challenge the ineffective assistance of his counsel because the petitioner "does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in this Court."*fn3 Accordingly, any failure by Tyra's counsel to petition for a writ of certiorari did not deprive Tyra of his Sixth Amendment right to effective assistance of counsel.
Second, even if Tyra's Sixth Amendment right to counsel remained attached at the time his counsel failed to petition for writ of certiorari, Tyra cannot satisfy Strickland's prejudice prong. To establish prejudice, Tyra must be able to show some reasonable probability that he would have had his sentence vacated or remanded to the lower court had counsel petitioned for writ of certiorari. See U.S. v. Mannino, 212 F.3d 835, 842-43 (3rd Cir. 2000) (providing in context of challenge to appellate counsel effectiveness that defendant must show reasonable probability that he would have had his sentence vacated or remanded had counsel raised particular arguments on appeal). Tyra contends that counsel should have argued in a petition for writ of certiorari that "the District Court failed to balance or articulate its balancing of the guideline sentencing range." (Stmt. of Claim ¶ 40) However, the Supreme Cort recently handed down its ruling in Rita, providing that: a) courts of appeals may apply a "presumption of reasonableness" to district court sentences within the Federal Sentencing Guidelines, and b) district judges must state their reasons for sentencing, but a full opinion is not required in every case. Rita v. United States, 2007 WL 1772146 (Jun. 21, 2007). As the Rita opinion shows, it is not reasonably likely that Tyra would have received the relief he desires even if his counsel had successfully petitioned for writ of certiorari. Therefore, even if Tyra had a Sixth Amendment right to effective counsel at that stage, he cannot satisfy the second prong of the Strickland analysis.*fn4
b. Counsel's Alleged Failures to Object to References to Tyra's Criminal History
Tyra's second claim is that counsel unreasonably failed to object to the government's violation of USSG § 1B1.8 during his sentencing hearing. According to Tyra, the government improperly used Tyra's self-incriminating admissions obtained pursuant to a proffer and cooperation agreement, and his lawyer failed to object to those actions. (Stmt. of Claim ¶ 51)
On January 26, 2004, Assistant U.S. Attorney McGovern interviewed Tyra and his counsel. (Exhibit E3) At the beginning of this interview, Tyra signed a proffer letter. (Id. at 3) The record of the interview does not indicate the content of the letter. Tyra claims that he understood this proffer letter to exchange use immunity for information he might reveal to the AUSA or the FBI in exchange for cooperation. (Stmt. of Claim ¶ 12) He pled not guilty at arraignment on February 2, 2004, but later entered a plea of guilty on June 24, 2004. Tyra's plea agreement squarely conflicts with his allegations regarding the terms of the proffer agreement; further, the plea agreement contains an integration clause and a clause permitting the government to disclose the full extent of its information to the sentencing court. (Dkt. No. 16, Plea Agmt. at 1)
On February 7, 2005, Tyra and his counsel engaged in a second interview with AUSA McGovern. Defense counsel referred to this as "the safety valve discussion."*fn5 (Dkt. No. 35-1, 5/19/05 Hr'g Tr. at 5) During the safety valve discussion, Tyra admitted to dealing drugs for the previous ten years. (Exhibit E1)The record of this discussion does not mention any proffer agreements. (Id.) Nevertheless, Tyra maintains that he believed his admissions on February 2, ...