The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On February 19, 2008, Petitioner filed a Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) and exhibits in Support (#2). On February 28, 2008, Petitioner filed a Motion to Appoint Counsel and to Conduct an Evidentiary Hearing (#6). On April 24, 2008, the Government filed its Response (#8). On May 23, 2008, Petitioner filed a Reply to the Government's Response (#13). Petitioner has also submitted additional lengthy exhibits in support of his Motion (#10, #11, #12). For the reasons that follow, Petitioner's Motion (#1) is DENIED. Accordingly, Petitioner's Motion to Appoint Counsel and Conduct an Evidentiary Hearing (#6) is denied as MOOT.
On December 3, 2004, Petitioner Larry D. Smith was indicted on one count of possession of a firearm by a felon, in violation of Title 18, United States Code, Section 922(g), in Case No. 04-CR-20072. After a jury trial, Petitioner was found guilty on February 22, 2005. On November 1, 2005, Petitioner was appointed new counsel to represent him, and on November 17, 2005, Petitioner was sentenced to 41 months imprisonment. On January 16, 2007, Petitioner's conviction and sentence were affirmed by the 7th Circuit Court of Appeals. United States v. Smith, 210 Fed. Appx. 533 (7th Cir. 2006). On February 19, 2008, Petitioner filed his pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. §2255 (#1) along with Exhibits in Support of his Motion (#2).
As an initial matter, Petitioner is correct that, although his sentence has expired, the fact that he was still subject to a period of supervised release means that he was still a 'prisoner in custody,' within the meaning of § 2255, at the time his petition was filed. See United States v. Essig, 10 F.3d 968, 970 n.3 (3rd Cir. 1993) (holding that supervised release is a form of custody). Therefore, this court retains jurisdiction.
Petitioner sets out two grounds for relief. Petitioner first claims ineffective assistance of counsel, arguing that his trial counsel misled him regarding the length of the sentence he would face if he pled guilty, and that he was not properly advised regarding the procedure for raising objections to his Pre-Sentence report. Petitioner also contends that newly discovered evidence casts doubt on the credibility of the law enforcement agents who testified at his trial.
To establish ineffective assistance of counsel, Petitioner must demonstrate: (1) that his counsel's representation fell below an objective standard of reasonableness; and (2) that the attorney's deficient performance prejudiced the Petitioner. McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir. 2007), citing Strickland v. Washington, 466 U.S. 668, 690, 694 (1984). In evaluating counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955).
Petitioner contends that his trial counsel was ineffective because counsel over-estimated the sentence Petitioner would receive if he pled guilty. Petitioner asserts that he was told that he was facing a sentence of 57 to 71 months, when his criminal history and offense level would in fact indicate a sentencing range of 30 to 37 months. Petitioner claims that, had he known the actual sentence he was facing, he would have pled guilty and not proceeded to trial. The Government is correct that the Seventh Circuit's decision in Toro provides the appropriate test to gauge whether counsel's performance was ineffective during the plea negotiation stage. See Toro v. Fairman, 940 F.2d 1065, 1067 (7th Cir. 1991). The Torotest states that, to establish that a rejected plea agreement prejudiced the Petitioner, it is necessary to show (1) through objective evidence that (2) there is a reasonable probability that, but for counsel's inadequate performance, [Petitioner] would have accepted a plea offer. Paters v. United States, 159 F.3d 1043, 1046 (7th Cir. 1998). Further, an attorney does not provide ineffective assistance because of inaccurate sentence predictions made in good faith. See United States v. Barnes, 83 F.3d 934, 939-40 (7th Cir. 1996). Even a "gross mischaracterization of the sentencing consequences of a plea" does not prove deficient performance unless the petitioner can show "that his attorney did not make a good-faith effort to discover the facts relevant to his sentencing, to analyze those facts in terms of the applicable legal principles and to discuss that analysis with him." Barnes, 83 F.3d at 940.
Here, Petitioner contends that all the facts were available to calculate the proper sentence and that defense counsel was ineffective in failing to communicate the correct information to him. This error, he contends, caused him to proceed to trial, which resulted in a sentence four to eleven months longer than the sentence he would have received had he pled guilty earlier. However, Petitioner has not provided any evidence that his counsel did not make a good-faith effort to calculate the applicable sentencing guideline range and advise Petitioner. This court notes that Petitioner was, at the plea negotiation stage, facing several pending charges in other jurisdictions. As it turned out, all of the charges were still pending at the time of Petitioner's sentencing hearing and were not considered in calculating Petitioner's criminal history category. However, these pending charges could conceivably have increased Petitioner's criminal history category and may have led defense counsel to calculate a potentially longer sentencing guideline range for Petitioner.
Moreover, Petitioner has not met the requirements of the Toro test because he has not provided any objective evidence of counsel's alleged ineffective performance during the plea negotiation stage. Bare assertions are not sufficient to establish that counsel's performance was deficient. Galbraith v. United States, 313 F.3d 1001, 1009 (no finding of ineffective assistance of counsel where Petitioner presents no affidavit from himself or his trial counsel supporting his version of counsel's conduct). Here Petitioner's claim rests exclusively on his account, in his motion, of the conversation he had with defense counsel regarding his plea options. This is an insufficient basis to establish deficient performance on the part of his counsel.
Petitioner next contends that his trial counsel was ineffective in failing to investigate the credibility of the law enforcement officers who offered testimony at Petitioner's trial. Specifically, Petitioner contends that his trial counsel should have questioned the arresting officers about occasions when they gave misleading information under oath, in an effort to undermine their credibility. The record indicates, however, that defense counsel did vigorously cross-examine witnesses as to their credentials and their account of Petitioner's arrest. By Petitioner's own admission, the motion to suppress hearing where Petitioner alleges that these law enforcement officers admitted to making misleading statements occurred after Petitioner's trial. There is thus no way defense counsel could have queried them about these matters under cross-examination. Because Petitioner can show no prejudice related to counsel's questioning of these witnesses, Petitioner's claim of ineffective assistance of counsel fails the Strickland test.
Petitioner also contends that his trial counsel did not object to material in his presentence report in a thorough or timely manner. This claim fails the prejudice prong the Strickland test for several reasons. First, Petitioner's trial counsel did submit numerous objections that were fully heard and resolved by this court prior to sentencing. Secondly, Petitioner was allowed to file several additional objections pro se, and voluntarily withdrew those objections after the Government agreed not to seek an upward departure based on an argument that Petitioner's criminal history category underrepresented his prior criminal conduct. Finally, Petitioner was appointed new counsel prior to sentencing, meaning that any additional objections he may have had could have been handled by his newly appointed counsel prior to sentencing. Petitioner's remaining complaints (that conditions in county jail are worse than federal prison, that he was not able to complete his drug/alcohol treatment program, etc.) are irrelevant to his claim of ineffective assistance of counsel.
Petitioner finally contends that trial counsel was ineffective because she quoted privileged attorney-client correspondence in exchanges with the prosecuting attorney. This court agrees with the Government that this claim fails because Petitioner has not provided any specific information about the nature of ...