The opinion of the court was delivered by: Reagan, District Judge
On March 18, 2002, Tyrone Wingate was sentenced to 70 months imprisonment followed by five years of supervised release (Case No. 01-CR-30103-002, Doc. 144). Wingate's sentence was later reduced to 38 months, and his supervised release began on March 28, 2004. On November 9, 2006, Wingate's supervised release was revoked after he admitted possessing cocaine. The Court entered judgment sentencing Wingate to 12 months plus one day in prison followed by an additional 38 months of supervised release. At his counsel's request, the Court also required that Wingate serve the first six months of supervised release at the Franklin Williamson Health Services Treatment Center in Marion, Illinois as a special condition of supervised release.
On January 16, 2007, Wingate filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.*fn1 Wingate argues that community confinement is an illegal condition of supervised release pursuant to 18 U.S.C. § 3583, which references 18 U.S.C. § 3563, and that his attorney's failure to object to that condition constitutes ineffective assistance of counsel. The question of the legality of community confinement stems from confusion surrounding Congress's amendments to 18 U.S.C. § 3563. Federal law provides:
The court may order, as a further condition of supervised release ... any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (20), and any other condition it considers to be appropriate.
Prior to the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the carve out in § 3583(d) read just as it does today, allowing § 3563(b)(1) through (b)(10) and (b)(12) through (b)(20) as conditions of supervised release. Originally, the provision allowing community confinement was found at (b)(12), while the provision allowing intermittent incarceration was found at (b)(11). However, AEDPA deleted (b)(2) and the rest of the subsections were renumbered accordingly. As a result, community confinement is now listed at (b)(11) and intermittent incarceration is at (b)(10). Despite these changes, Congress did not amend the carve out in § 3583(d). Thus, the literal text of the statutes now appears to allow the Court to impose intermittent incarceration as a condition of supervised release, but not community confinement.
For the following reasons, Wingate's motion is DENIED.
1. Ineffective Assistance of Counsel Under Strickland
Assuming arguendo that community confinement is an illegal condition of supervised release, Wingate would have to show that his attorney's failure to object constituted ineffective assistance of counsel. Under the familiar standard of Strickland v. Washington, 466 U.S. 668 (1984),to prevail on an ineffective assistance claim, a defendant must show both that his counsel's performance was deficient and that the deficient performance prejudiced the defense. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
As to the first requirement, trial counsel's performance will not be considered deficient unless it falls below an objective standard of reasonableness. This Court may not judge trial counsel's performance with the benefit of hindsight and must apply a "strong presumption" that counsel's performance fell "within the wide range of reasonable professional assistance." Id. (citing Strickland, 466 U.S. at 688--89). As to the second requirement, the Seventh Circuit has articulated what is needed to show prejudice in the ineffective assistance of counsel context.
With respect to prejudice, . . . it is not enough to show that the attorney erred, or that the error had "some conceivable effect on the outcome." . . . . Instead, "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A ...