The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
In 2004, a jury convicted Akin Martins of conspiracy to possess and distribute heroin, possession of 166 grams of heroin with intent to distribute, and the use of a telephone to facilitate a heroin distribution conspiracy. The Court sentenced Martins to seventy-two months imprisonment. Martins has moved the Court pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence, alleging that his trial counsel, Ronald Clark, was ineffective. For the reasons stated below, the Court rejects four of Martins' six claims but defers resolution of the remaining claims to give Martins the opportunity to supplement his motion.
Martins was one of five men charged with narcotics offenses relating to a Nigerian heroin importation and distribution ring alleged to operate in Chicago between May 2002 and May 2003. Martins was charged with conspiracy to possess heroin with intent to deliver; use of a telephone on November 27, 2002 to carry out the alleged heroin conspiracy; and possession with intent to deliver heroin on that same date. Three of Martins' co-defendants -- Al Stevens, Olajide Omosanya, and Theodore Fabriek -- pled guilty, cooperated with the prosecution, and testified at trial. Martins and co-defendant Yemi Odulate were tried jointly and were both convicted of all the charges against them.
Martins appealed from his conviction and sentence. His appointed counsel moved to withdraw, identifying the issues he had examined and asserting that he could not find a valid basis for appeal. The court of appeals permitted Martins to respond to counsel's motion. After considering the potential issues identified by counsel and by Martins, the court granted counsel's motion to withdraw and dismissed Martins' appeal. Counsel identified three possible issues in his motion to withdraw. The first potential issue concerned whether this Court had erred in trying Martins together with Odulate; the court of appeals concluded that the issue was frivolous. United States v. Martins, No. 04-3350, slip op. at 2 (7th Cir. Apr. 19, 2005). The second potential issue involved this Court's failure to instruct the jury on multiple conspiracies; the court of appeals likewise found that issue frivolous, as this Court covered the point in the general conspiracy instructions it gave the jury. Id. The third potential issue concerned the sufficiency of the evidence against Martins; again, the court of appeals found the issue frivolous. Id. at 3.
The court of appeals also addressed several points Martins identified in his response to counsel's motion to withdraw. Martins contended his trial counsel was ineffective; the court of appeals stated that "ineffective-assistance claims are more preferably made through a motion under 28 U.S.C. § 2255, where new evidence may be introduced to fully develop the record." Id. The court rejected Martins' contention that the government had violated its obligation to turn over exculpatory evidence by failing to produce a statement from Odulate that the substance they were distributing was not heroin. The court stated that because Martins had to know this information if it was true, its non-disclosure did not violate the government's obligations under Brady v. Maryland. Id. Next, the court of appeals rejected Martins' assertion that this Court had improperly held him accountable at sentencing for drug quantities with which he had not been charged, stating that the argument would be frivolous because this Court had sentenced Martins within the confines of the jury's findings regarding the drug quantity involved in the charges on which he was convicted. Id. Finally, the court of appeals rejected Martins' contention that this Court had imposed a sentence in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), noting that the Court had stated that it would have imposed the same sentence even if the Sentencing Guidelines were not mandatory. Id. at 3-4.
In his section 2255 motion, Martins contends that his trial counsel rendered constitutionally ineffective assistance. First, Martins contends that counsel should have filed a motion attacking the sufficiency of the indictment, which Martins contends was vague and lacking sufficient detail regarding the dates, locations, quantities, and types of drugs involved in the alleged drug transactions. Second, he argues that counsel should have taken steps to require the government to identify specific overt acts supporting the conspiracy charged in Count One of the indictment, which Martins contends was too vague and nonspecific to allow him to mount an adequate defense. Martin argues that if he had more specifics, he could have provided his counsel with exculpatory evidence, such as an alibi for relevant dates and times. He says he intended to ask his counsel to seek more detail but that counsel did not show up to see him until just three days before trial and then ignored Martins' request to seek greater detail.
Martins' third claim is that despite his repeated requests, his counsel failed to contact co--defendant Odulate (or his counsel) to secure an exculpatory affidavit and to ask Odulate to testify in Martins' defense. Fourth, Martins contends that counsel performed an inadequate cross-examination of the government's witnesses by failing to have them identify the specific dates, locations, quantities, and types of drugs involved in the alleged drug transactions so that Martins could present his own alibi and alibi witnesses. Fifth, he argues that counsel failed to exploit testimonial inconsistencies between the two government witnesses regarding the year of the alleged drug transactions and failed to highlight the importance of these discrepancies to the jury. Sixth, Martins contends that counsel failed to investigate and present at trial post-arrest statements by Odulate and unindicted co-conspirator Patrick Adeniyi that Martins contends exculpated him.
As indicated earlier, Martins refers repeatedly to his counsel's lack of communication with him, saying he made repeated efforts to contact his counsel but did not see him until three days before trial. Martins contends counsel did not provide him with copies of discovery or other relevant documents and that as a result he was prevented him from learning the details of the government's contentions until he heard them at trial.
To determine whether Martins has established his claims of ineffective assistance of counsel, the Court applies the principles of Strickland v. Washington, 466 U.S. 668 (1984). To show his counsel's assistance was constitutionally defective, Martins must establish that counsel's deficient performance prejudiced his defense. Id. at 687. Deficient performance occurs when counsel's conduct falls below an objective standard of reasonableness. Id. at 688. In this regard, a court assessing counsel's performance must make "every effort . . . to eliminate the distorting effects of hindsight," and the defendant must overcome a presumption that the trial lawyer's decisions were part of a "sound trial strategy." Id. at 689. Strickland's prejudice requirement necessitates a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694; see also Bell v. Cone, 535 U.S. 685, 697-98 (2002). In making this showing, speculation that counsel's errors had some conceivable effect on the outcome is insufficient; the defendant must specifically explain how the outcome of the proceedings would have been different absent counsel's ineffective assistance. Berkey v. United States, 318 F.3d 768, 773 (7th Cir. 2003).
1. Claim One - Failure to Challenge Sufficiency of Indictment
Martins' first claim is that trial counsel was deficient because he failed to challenge the vagueness of the indictment by way of a pretrial motion to dismiss. Martins could not possibly have been prejudiced by counsel's failure to file such a motion. An indictment is sufficient if it states all the elements of the charged offense, informs the defendant of the nature of the charge so that he may defend himself, and enables the defendant to plead the judgment as a bar to any later prosecution for the same offense. See United States v. Garner, 837 F.2d 1404, 1412 (7th Cir. 1987). The indictment in this case met those standards. The only way in which Martins suggests that the indictment may have been insufficient is that it allegedly did not sufficiently detail any overt acts in which he was claimed to have participated. The Court notes initially that no overt act need be alleged or proven to establish a conspiracy under 21 U.S.C. § 846. See, e.g., United States v. Dumes, 313 F.3d 372, 382 (7th Cir. 2002). But that aside, the indictment sufficiently advised Martins of his alleged role in the conspiracy to permit him to defend himself: it alleged that between May 2002 and May 2003, he received quantities of heroin from Omosanya and Fabriek and provided it, or arranged to provide it, to others for resale, including to co-defendants Stevens and Odulate. See Indictment ¶¶ 6-8. In short, a motion to dismiss the indictment would not have succeeded, and thus counsel's failure ...