The opinion of the court was delivered by: Murphy, District Judge
This matter is before the Court on Petitioner's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. Petitioner's motion is based on a claim of ineffective assistance of counsel during plea negotiations. The Government responded to Petitioner's motion as ordered by this Court. For the reasons set forth below, Petitioner's motion is denied.
On December 20, 2002, an indictment was filed against John Rodney Veach, charging him with possession with intent to distribute cocaine. After being appointed two different attorneys, Veach retained attorney Eric J. Bell, who was substituted as counsel of record on May 2, 2003. After an examination, Veach was declared competent to stand trial, and then on July 22, 2003, he pleaded guilty with a plea agreement. The plea agreement contained an appellate waiver. Per the Stipulation of Facts signed by Veach, he obtained powder and crack cocaine in Corpus Christi and New Orleans for distribution in southern Illinois. Veach was arrested in Carbondale, Illinois, on October 7, 2002, after throwing down a bag containing 310 grams of powder cocaine while fleeing on foot from the arresting officer. The parties agreed in the Stipulation of Facts that Veach's relevant conduct included 595 grams of powder cocaine and 28.35 grams of crack cocaine. On September 2, 2003, attorney John D. Stobbs II appeared as co-counsel for Veach. Before sentencing, Veach's attorneys filed objections to the presentence investigation report and a motion for downward departure for over-representation of Veach's criminal history, though this motion was withdrawn during the sentencing hearing. On November 17, 2003, Veach was sentenced to 188 months in the Bureau of Prisons. He received a downward departure on the fine amount due when the Court ordered a fine of $1,000.
At the conclusion of the sentencing hearing, Veach asked the Clerk of Court to prepare and file a notice of appeal on his behalf. The Clerk did so, and the appeal was filed on November 17, 2003. Attorneys Bell and Stobbs withdrew as attorneys of record and did not represent Veach on appeal. The Seventh Circuit Court of Appeals rejected Veach's contention that Booker v. United States, 125 S.Ct. 738 (2005), established an exception to waivers of appeal rights, citing its decision in United States v. Bownes, 405 F.3d 634, 638 (7th Cir. 2005). The Court of Appeals consequently dismissed Veach's appeal on May 11, 2005.
On July 18, 2006, through attorney Delbert Pruitt, Veach filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct this Court's judgment issued November 17, 2003 based on ineffective assistance of counsel during plea negotiations. On October 25, 2007, the Court directed the Government to respond to Veach's motion, and the Government filed its response on January 5, 2008.
A 28 U.S.C. § 2255 motion does not mandate an evidentiary hearing. Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996); see also Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001). "[A] district court must grant an evidentiary hearing when the petitioner alleges facts that, if proven, would entitle him to relief." Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006) (emphasis in original) (internal quotations omitted). However, if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief" then a hearing is not required. Id. Allegations that are "vague, conclusory, or palpably incredible rather than detailed and specific" do not warrant a hearing. Bruce, 256 F.3dat 597. Likewise, "mere speculation" does not warrant an evidentiary hearing, as the petitioner "must file detailed and specific affidavit showing he has actual proof of allegations he is making." Miller v. United States,183 Fed. Appx. 571, 578 (7th Cir. 2006). For evidentiary hearing consideration, the Seventh Circuit requires a petition made pursuant to 28 U.S.C. § 2255 to "include an affidavit setting forth the specific basis for relief." Kafo, 467 F.3d at 1067. An affidavit accompanying the petition is a threshold requirement --"its absence precludes the necessity of a hearing." Id. The specific allegations in the petition and accompanying affidavit must go beyond merely unsupported assertions, as "[m]ere unsupported allegations cannot sustain a petitioner's request for a hearing. Prewitt 83 F.3d at 819.
Veach's § 2255 motion does not specifically request an evidentiary hearing, nor is such a hearing warranted. Though Veach provides an affidavit to meet the threshold requirement for a hearing, Veach alleges no facts in his petition or supporting affidavit that, if true, would entitle him to § 2255 relief. The Court's careful review of the motion, files, and records leads the Court to conclude that an evidentiary hearing is not required in this case. Consequently, the Court will resolve the motion without a hearing.
1. Collateral Review Under 28 U.S.C. § 2255
Section 2255 requires the court to vacate, set aside, or correct the sentence of a prisoner in custody if it finds that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. "Habeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Kafo, 467 F.3d at 1068, quoting Prewitt, 83 F.3d at 816. There are "significant procedural hurdles" to consideration of a petitioner's habeas claim. Bousley v. United States, 523 U.S. 614, 615 (1998). Collateral relief is appropriate only when the error is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. Unites States, 113 F.3d 704, 705 (7th Cir. 1997). Habeas relief under § 2255 is not a substitute for direct appeal. Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000). Thus, "[c]laims not raised on direct appeal are barred from collateral review unless upon review, we have been convinced that a failure to consider the issue would amount to a fundamental miscarriage of justice." Id.at 433. Specifically, a § 2255 motion "can not raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal." Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) (emphasis in original), overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).
Despite these proscriptions on the availability of § 2255 collateral review, procedural default can not serve as the reason for dismissing an ineffective assistance of counsel § 2255 claim. Fuller v. United States, 398 F.3d 644, 650 (7th Cir. 2005). Ineffective assistance of counsel claims "may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003). In fact, the Seventh Circuit has identified § 2255 motions as a more appropriate venue than direct appeal for raising ineffective assistance of counsel claims, as the opportunity to adequately "develop the factual predicate for the claim" arises independent of the trial record. Id. Veach's grounds for his petition for relief pursuant to § 2255 are couched as ineffective assistance of counsel claims.
2. Ineffective Assistance of Counsel
If a § 2255 motion claiming ineffective assistance of counsel survives preliminary review and is considered on its merits, the court evaluates the claim under the two-prong Strickland test. McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir. 2007), citing Strickland v. Washington, 466 U.S. 668, 694 (1984). There is a heavy burden of proof on a defendant asserting an ineffective assistance of counsel claim. Harris v. Reed, 894 F.2d 871, 874 (7th Cir. 1990). "The benchmark for judging any claim to ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. Under Strickland, the petitioner must prove (1) that his attorney's performance fell below an objective standard of reasonableness and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." McDowell, 497 F.3d at 761. If the Court finds either the performance or the prejudice component of the ineffective assistance claim deficient under the Strickland test, then there is no need to consider the sufficiency of the other component. United States v. Slaughter, 900 F.2d 1119, 1124 (7th Cir. 1990). "A defendant's failure to satisfy either prong is fatal to his claim." Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993).
a. Review of Attorney Performance
The Court's review of attorney performance is "'highly deferential,' with the underlying assumption that 'counsel's conduct falls within the wide range of reasonable professional assistance.'" United States v. Holman, 314 F.3d 837, 840 (7th Cir. 2002), quoting Strickland, 466 U.S. at 689. Counsel is "strongly presumed to have rendered adequate assistance and to have made significant decisions in the exercise of his or her reasonable professional judgment." Cooper v. United States, 378 F.3d 638, 641 (7th Cir. 2004). The Court presumes that counsel made reasonable strategic choices unless the petitioner produces evidence rebutting that presumption. Id. Hence, it is "not easy for a petitioner to show that his counsel's performance was objectively ineffective, as.'[t]he reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential.'" Hartjes v. Endicott, 456 F.3d 786, 790 (7th Cir. 2006), quoting Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). In order to establish that counsel's performance was deficient, the defendant must show errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Hartjes, 456 F.3d at 790.
b. Prejudicial Effect of Attorney Performance
Proving that deficient performance of counsel actually prejudiced the defense requires a showing of the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Benefiel v. Davis, 357 F.3d 655, 661 (7th Cir. 2004), citing Strickland, 466 U.S. at 694; see also Williams v. Taylor, 529 U.S. 362, 363 (2000). This test is also "highly deferential to counsel and presumes reasonable judgment and effective trial strategy." Hays v. United States, 397 F.3d 564, 568 (7th Cir. 2005). The defendant must demonstrate that counsel's error actually had an adverse effect. Strickland, 466 U.S. at 693. However, "[n]ot every adverse consequence of counsel's choices is 'prejudice' for constitutional purposes." United States v. Springs, 988 F.2d 746, 749 (7th Cir. 1993). Counsel's conduct must be shown to have "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Cooper, 378 F.3d at 642, citing Strickland, 466 U.S. at 686. The defendant must prove that counsel's ineffectiveness deprived him of a substantive or procedural right to which he is entitled by law. Williams v. Taylor, 529 U.S. at 363. For example, in order to satisfy Strickland's prejudiceprong, a defendant who pleaded guilty and then alleges ineffective assistance of counsel during plea negotiations in a 28 U.S.C. § 2255 motion must prove that there is a reasonable probability that, but for counsel's deficient performance, he would not have pleaded guilty. Hays, 397 F.3d at 568. The defendant must introduce objective evidence in support of his § 2255 motion -- self-serving testimony is not sufficient to prove the prejudice component of the Strickland test for ineffective assistance of counsel. McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996); cf. Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (finding defendant did not present sufficient evidence to satisfy Strickland prejudice prong when defendant never stated that he would have accepted the guilty plea but for his counsel's advice and did not present objective evidence to that effect).
The Supreme Court has defined narrow exceptions to Strickland "where it is appropriate for a court to presume prejudice." McDowell, 497 F.3d at 762, 764, citing United States v. Cronic, 466 U.S. 648, 658 (1984); see also Cuyler v. Sullivan, 446 U.S. 335, 338 (1980); Florida v. Nixon, 543 U.S. 175, 190 (2004). Prejudice may be presumed where: (1) there is a complete denial of counsel; (2) there is a denial of counsel at a critical stage of the litigation; (3) counsel entirely fails to subject the prosecution's case to a meaningful adversarial test; (4) the likelihood that any lawyer could have provided effective assistance is very small; or (5) counsel labored on behalf of the defendant while harboring a conflict of interest. McDowell, 497 F.3d at 761. If a defendant alleges a conflict of interest, he must meet one of two standards in order for that alleged conflict to arise to presumed prejudice in an ineffective assistance of counsel claim. United States v. Wallace, 276 F.3d 360, 366 (7th Cir. 2002). The Court will presume prejudice if "the trial judge knew or should have known that a potential conflict of interest existed and did not adequately address the issue with the defendant." Id. Alternately, the Court will presume prejudice if the trial judge was not put on notice of a potential conflict and the defendant demonstrates that counsel actively represented an actual conflicting interest and that the conflict adversely impacted counsel's representation. Id.at 367. A potential conflict of interest that does not "ripen" into an actual conflict is not sufficient. Fuller, 398 F.3d at 648.
3. Waiver of Appellate and Collateral Attack Rights
The Court will enforce a plea agreement's appellate and collateral attack waiver "if its terms are clear and unambiguous and the record shows that the defendant knowingly and voluntarily entered into the agreement." Unites States v. Blinn, 490 F.3d 586, 588 (7th Cir. 2007). Courts may consider a defendant's signature on the plea agreement and his statements during the plea colloquy as evidence of a knowing and voluntary waiver. See United States v. Jemison, 237 F.3d 911, 917 (7th Cir. 2001); United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002). "[A] careful plea colloquy under Rule 11 ensures that the guilty plea is knowing and voluntary." Schuh, 289 F.3d at 975. The court is "not required to conduct a specific dialogue with the defendant concerning the appeal waiver, so long as the record contains sufficient evidence to determine whether the defendant's acceptance of the waiver was knowing and voluntary." Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1999). Representations made during plea hearings are "entitled to a presumption of verity." United States v. Pike,211 F.3d 385, 389 (7th Cir. 2000).
However, though a valid appellate waiver may be binding in other respects, it does not preclude judicial review of a claim that the plea agreement itself was the product of ineffective assistance of counsel. Jemison, 237 F.3d at 917. Therefore, if the defendant can demonstrate ineffective assistance of counsel with respect to the negotiation of the waiver, then the waiver is not effective against a § 2255 challenge. Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000). "Even an ineffective assistance claim cannot survive a waiver unless the claim relates specifically to the voluntariness of the waiver itself." Bridgeman v. United States, 229 F.3d 589, 593 (7th Cir. 2000). That is, ineffective assistance claims related to anything other than the plea negotiation -- related to counsel's performance at sentencing, for example -- are barred by an enforceable waiver. Id.; see also Jones, 167 F.3d at 1145 ("[W]e reiterate that waivers are enforceable as a general rule; the right to mount a collateral attack pursuant to § 2255 survives only with respect to those discrete claims which relate directly to the negotiation of the waiver."); United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir. 2000) (finding that when petitioner surrendered the right to challenge his sentence on any grounds in a voluntary plea agreement, he had no viable theory for appeal).
C. Veach's Motion to Vacate, Set Aside, or Correct Sentence
By couching his motion in terms of ineffective assistance of counsel during plea negotiations, Veach attempts to circumvent restrictions on § 2255 collateral relief, procedural default, and the enforceability of the waiver in his plea agreement. Upon review, the appellate and collateral attack waiver in Veach's plea agreement is enforceable. However, as Veach's claim of ineffective assistance directly related to the plea negotiation is not barred by this otherwise enforceable waiver, the Court analyzes this specific claim on the merits. Veach's claim fails under a Strickland analysis. ...