The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On September 7, 2006, Petitioner, Ronald Wiggins, filed a pro se Motion to Vacate, Set Aside or Correct Sentence (#1) pursuant to 28 U.S.C. § 2255. Later, on November 8, 2006, Petitioner filed a Memorandum and Brief in Support (#5). In his Memorandum, Petitioner claims that he is entitled to an order vacating his conviction and sentence because he was denied the effective assistance of counsel at trial and because this court made errors when it imposed Petitioner's sentence. On March 20, 2007, the Government filed its Response to Petitioner's Motion under 28 U.S.C. § 2255 (#8). On April 27, 2007, Petitioner filed his Reply (#10). This court has carefully considered the arguments raised by the parties and the record in this case. Following this careful and thorough review, Petitioner's Motion to Vacate, Set Aside or Correct Sentence (#1) is DENIED.
On May 8, 2003, in Case No. 03-20032, Petitioner was charged by indictment with bank robbery, in violation of 18 U.S.C. § 2113(a). A jury trial commenced on November 3, 2003. At trial, the Government presented witnesses who testified that the Land of Lincoln Credit Union was robbed on April 19, 2003, at approximately 10:30 a.m. The Government also presented witnesses who identified Petitioner as the person who committed the robbery. Bank security camera photographs were shown to the jury, and evidence was presented that Petitioner was identified as the robber based upon the photographs of the robber taken by the bank security camera. Evidence was also presented that law enforcement officers stopped Petitioner for a traffic violation the morning of April 30, 2003. The officers conducted a routine identification check and were advised that there was a federal warrant for Petitioner's arrest. After arresting Petitioner, the officers seized $9,500 from a box in the trunk of the car and more than $500 from Petitioner's pants pockets. As he was being placed in the squad car, Petitioner exclaimed that the money was "not bank robbery money." The evidence showed that four of the bills found on Petitioner at the time of his arrest were prerecorded "bait bills" taken during the robbery of the credit union.
On November 4, 2003, the jury found Petitioner guilty of bank robbery. On February 6, 2004, a sentencing hearing was held. Because Petitioner had two prior controlled substance offenses, he was a "career offender" under the sentencing guidelines, making the guideline range 210 to 262 months. However, the statutory maximum sentence for Petitioner's offense was 240 months, and this court sentenced Petitioner to the statutory maximum term of 240 months in the Federal Bureau of Prisons. Petitioner was also sentenced to three years of supervised release and was ordered to pay $19,430 in restitution and a $100 special assessment.
Petitioner filed a Notice of Appeal. Petitioner's appellate counsel filed an Anders brief, and Petitioner responded. The Seventh Circuit, after addressing the possible issues raised in the Anders brief as well as the arguments Petitioner raised in his response, granted appellate counsel's motion to withdraw and dismissed the appeal. United States v. Wiggins, 138 Fed.Appx. 842 (7th Cir. 2005) (unpublished order). In doing so, the Seventh Circuit noted that the evidence of Petitioner's guilt was overwhelming. Wiggins, 138 Fed.Appx. 842, at *1.
On September 7, 2006, Petitioner filed his pro se Motion to Vacate, Set Aside or Correct Sentence (#1) pursuant to 28 U.S.C. § 2255. Petitioner later filed a Memorandum and Brief (#5) and set out four grounds for relief: (1) that he was denied the effective assistance of trial counsel because (a) his appointed counsel did not present a defense, even though Petitioner provided him with the names of alibi witnesses, (b) his appointed counsel did not request a mental evaluation even though Petitioner has a third grade education level and was unable to understand the proceedings and assist in his defense, (c) his appointed counsel did not effectively cross-examine the Government's witnesses, and (d) his appointed counsel did not adequately explain the plea agreement proposed by the Government; (2) he was denied the effective assistance of counsel because his counsel did not seek a downward departure from the applicable sentencing guideline range based upon his educational impairment; (3) he was denied the effective assistance of counsel because his appointed counsel stipulated to an element of the charged offense, that the credit union was federally insured; and (4) this court inappropriately increased Petitioner's sentence based upon hearsay evidence and facts which were not found by the jury beyond a reasonable doubt and inappropriately increased his sentence by including a term of supervised release.
Petitioner attached his own affidavit in support of his claims. In his affidavit, Petitioner stated that his counsel told him that the Government was interested in offering him a plea and that he should consider the benefit that a plea may provide to him. Petitioner stated that he explained to his counsel that he "had a[n] impairment in respect to [his] education" and "could not read and comprehend any legal documents." Petitioner stated that due to his "inability to read and comprehend the complex documents and to follow the legal language" he could not follow the proceedings in his case. Petitioner also stated that he told his counsel that he was with family members at a get together where they were "cooking and drinking" (presumably at the time of the credit union robbery). He stated that he gave his counsel the names, addresses, and telephone numbers of these family members. Petitioner stated that his counsel never contacted these family members.
The Government filed its Response (#8) and attached the affidavit of Petitioner's trial counsel, John C. Taylor. In his affidavit, Taylor stated that he has been an attorney for approximately 27 years and has represented over 1,000 clients in criminal proceedings in state and federal courts in Illinois. Taylor stated that he personally reviewed discovery documents with Petitioner, page by page, and thoroughly explored all defenses reasonably available. Taylor stated that Petitioner verbally advised him of four alibi witnesses: Lewis Wiggins, David Wiggins, Tanji Wiggins, and Nakima Robertson. Taylor stated that he investigated all of these alibi witnesses. He stated that he was unable to locate some of the witnesses and, "as to the witnesses he did interview, none could establish a credible alibi for [Petitioner]." Taylor stated that, in all of his meetings and discussions with Petitioner, Petitioner "never displayed, indicated, or discussed any mental condition as a result of which he could not read or understand documents, specifically legal documents." Taylor stated that, "[t]o the contrary, [his] observations showed [Petitioner] was well able to read and write and clearly understand the discovery and pleadings in this case." Taylor stated that he discussed a proposed plea agreement with Petitioner, and Petitioner rejected the plea agreement and told Taylor he wished to proceed to trial. Taylor stated that he discussed with Petitioner the stipulation that the deposits in the credit union were insured by the National Credit Union Association. Taylor stated that a review of the discovery revealed there was no material dispute as to this fact.
Petitioner filed a Reply (#10) and, in response to Taylor's affidavit, attached records from his GED tests at the Greenville Federal Correctional Institution. Unfortunately, the records list numbers which are apparently Petitioner's scores on tests but do not provide any explanation regarding what the test scores mean.
This court first notes that relief under 28 U.S.C. § 2255 is reserved for extraordinary situations. Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996), citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993). Accordingly, a petitioner may avail himself of relief under § 2255 only if he can show that there are "flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude, or result in a complete miscarriage of justice." Boyer v. United States, 55 F.3d 296, 298 (7th Cir. 1995). An evidentiary hearing is not required if 'the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001), quoting 28 U.S.C. § 2255. A hearing is not necessary if the petitioner makes allegations that are "vague, conclusory, or palpably incredible," rather than "detailed and specific." Bruce, 256 F.3d at 597, quoting Machibroda v. United States, 368 U.S. 487, 495 (1962). "[I]f there is no reason to suppose that a hearing would produce evidence justifying the grant of a new trial, there is no reason to hold a hearing." United States v. Joiner, 847 F. Supp. 604, 607 (N.D. Ill. 1994), aff'd 78 F.3d 586 (7th Cir. 1996) (unpublished order), quoting United States v. Taglia, 922 F.2d 413, 419 (7th Cir. 1991).
Based upon this standard, and the record in this case, this court agrees with the Government that Petitioner has not included any claims which would warrant an evidentiary hearing or relief under 28 U.S.C. § 2255. This court notes that Petitioner was convicted following a jury trial at which the Government presented overwhelming evidence of Petitioner's guilt, including eyewitnesses who identified Petitioner as the person who robbed the credit union and evidence that Petitioner was in possession of a large amount of ...