The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Merlin Coleman was convicted of conspiracy, three counts of using a telephone to facilitate the conspiracy, and a substantive count of possession with the intent to distribute crack cocaine. He was sentenced to 240 months in prison. He has filed a petition under 28 U.S.C. § 2255 alleging a series of ineffective assistance of counsel claims. For the following reasons, the petition is denied.
Coleman, along with his co-defendants, was initially charged with conspiracy to distribute and to possess with intent to distribute in excess of 5 kilograms of cocaine and in excess of 50 grams of cocaine base during the time period spanning from 1998 to March 2002. On February 28, 2003, Coleman began to enter a guilty plea to these charges pursuant to a written plea agreement with the government in which Coleman agreed that he was responsible for 5 to 15 kilograms of cocaine. Coleman verbally affirmed this fact at the plea hearing after the government stated the facts supporting Coleman's guilt, but when asked directly by the court what he had done, Coleman retracted his admission. At that point, the plea hearing was continued by agreement of the parties so that defense counsel could confer with his client in an attempt to resolve the drug amount issue. Coleman would never complete his guilty plea.
On May 29, 2003, a grand jury returned a superseding indictment charging Coleman and some of his co-defendants with the same drug conspiracy previously charged, but for the time period of 1996 through March 2002. In addition to the conspiracy count, Coleman was also charged with a substantive count of distributing cocaine on October 21, 2000 (Count XII), and three telephone counts. Coleman was arraigned on the superseding indictment on June 6, 2003, entering a plea of not guilty. On July 11, 2003, the government filed an Information and Notice Pursuant to 21 U.S.C. § 851, indicating that the government intended to seek enhanced penalties against Coleman based upon one of Coleman's two prior felony drug convictions.
Coleman and his co-defendants' jury trial began on July 21, 2003 and lasted approximately 8 days. On August 1, 2003, the jury found Coleman guilty as charged in the superseding indictment and determined he was responsible for 5 or more kilograms of cocaine as part of the conspiracy. Coleman was sentenced to 240 months' imprisonment. Coleman later appealed his conviction and sentence.
The Seventh Circuit upheld his conviction. See United States v. Jenkins, 419 F.3d 614 (7th Cir. 2005).
Ineffective assistance of trial counsel may properly be raised in a § 2255 motion regardless of whether the issue was raised on direct appeal, as long as the petitioner presents extrinsic evidence in support of his motion. McCleese v. United States, 75 F.3d 1174, 1178 (7th Cir. 1996) (citations omitted). To prevail, Coleman must show that (1) his counsel's performance was constitutionally deficient, and (2) the deficient performance prejudiced him with regard to the outcome of the trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984).*fn1
A. Claims 1, 2, 4: Ineffective Assistance of Trial Counsel Regarding the Guilty Plea
Coleman argues his trial counsel was ineffective subsequent to the plea hearing by failing to communicate with him about pleading guilty and that Coleman would have done so rather than go to trial.
In order to prevail on this claim, Coleman must establish that there is objective evidence that he would have plead guilty if he had received adequate assistance of counsel. Paters v. United States, 159 F.3d 1043, 1046-47 (7th Cir. 1998).
Coleman argues that he did not want to go to trial given the evidence against him, and that he wanted to plead guilty in order to avoid additional charges, increased statutory penalties, and the loss of acceptance of responsibility points. Coleman blames his trial counsel for failing to communicate or consult with him after the incomplete plea hearing about renewing a plea of guilty, and claims that if trial counsel had properly advised him in that regard, he would have chosen to plead guilty and necessarily received a lower sentence.
Although Coleman's affidavit alleges he would have pled guilty but for his counsel's lack of communication and advice until the eve of trial, the objective evidence is inconsistent with such a claim. Coleman had numerous opportunities to inform the court and his counsel of his desire to plead guilty after the continued February 28, 2003 plea hearing. Coleman's guilty plea was continued on February 28 after he denied that he had distributed in excess of five kilograms of cocaine, contrary to the government's proffer to the court of what the evidence would be if the case went to trial. Initially, the matter was continued to March 10, 2004, at which time the defendant and his lawyer were present. The plea was continued at that time to April 11 because defense counsel indicated he needed more time to discuss the matter with defendant. On April 11, 2004, defendant and his lawyer were present. Counsel stated there would not be a plea. I then asked defendant if he wanted to go to trial and he moved his head up and down, signifying "yes." Coleman also stood with his trial counsel at his June 6, 2003 arraignment on the superseding indictment and was present at the pretrial conference following arraignment. At no time during any of the hearings did Coleman either indicate he wanted to plead guilty (and he responded affirmatively to my question on April 11 as to whether he wanted to go to trial), or state that he was having any difficulty in communicating with his lawyer. Moreover, Coleman's allegation ...