The opinion of the court was delivered by: James F. Holderman, Chief Judge
MEMORANDUM OPINION AND ORDER
For the reasons set forth below, petitioner Willie H. Jones' "Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" under 28 U.S.C. § 2255 (Dkt. No. 1) is denied.
On September 18, 2003, a criminal indictment was returned against Willie H. Jones ("Jones"), charging Jones with four counts of distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1). On November 14, 2003, after a three-day trial, a jury convicted Jones on all four counts. The court then sentenced Jones to a term of 168 months' imprisonment, with 8 years of supervised release, a $2,000 fine, and a $400 special assessment.*fn1 On appeal, Jones argued that he was entitled to have a jury determine beyond a reasonable doubt the drug quantities on which his sentence was based. The Seventh Circuit affirmed Jones' sentence, as well as the court's determination of drug quantities under a preponderance of the evidence standard. United States v. Willie H. Jones, 187 Fed. App'x 654 (7th Cir. July 31, 2006). Jones timely filed his § 2255 motion on October 1, 2007, within one year from the expiration of the time period for petitioning the U.S. Supreme Court for certiorari.
Under § 2255, "[a] prisoner in custody under sentence of a [federal] court . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). If the court finds that the sentence was imposed in violation of the petitioner's constitutional rights, the court must vacate and set aside the judgment and discharge the petitioner, resentence the petitioner, grant a new trial, or correct the sentence. 28 U.S.C. § 2255(b).
In this case, Jones argues that he was deprived of his constitutional right to the effective assistance of counsel, when his trial counsel failed to secure Jones with civilian clothes to wear during his jury trial.*fn2 Although this argument was not raised on direct appeal, "an ineffective assistance of counsel claim may be raised for the first time in a § 2255 proceeding." Torzala v. United States, 545 F.3d 517, 524 (7th Cir. 2008) (citing Massaro v. United States, 538 U.S. 500, 509 (2003)).
To prevail on a claim of ineffective assistance of counsel, a defendant must show that: (1) the attorney's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 695 (1984). "Strickland's 'reasonable probability' language does not require a petitioner to meet a preponderance of the evidence threshold, but it does require a petitioner to show 'a probability sufficient to undermine confidence in the outcome.'" Porter v. Gramley, 122 F.3d 351, 353 (7th Cir. 1997) (quoting Strickland, 466 U.S. at 694)).
For purposes of this analysis only, the court accepts as true the allegations set forth in the affidavits of Jones and his wife (attached to Jones' reply brief and on file with the court).*fn3
Prior to his trial date, Jones spoke to his wife, Latoria Payton ("Payton") on the phone and requested that she provide Jones with suitable civilian clothing to wear during the trial. (Jones Aff. ¶ 2; Payton Aff. ¶¶ 2-3.) When Jones discovered that Payton would be unable to provide the clothing in advance of trial, he informed his attorney, Eugene Steingold ("Steingold"), that he wished to postpone the trial date until Jones was able to obtain civilian clothing. (Jones Aff. ¶¶ 3, 5.) Steingold told Jones that he would not ask the court for a postponement, stating that "it really doesn't matter" whether Jones appeared in prison garb or civilian clothes. (Id. ¶ 6.) Steingold further noted that, if Payton could not provide Jones with suitable clothing prior to the trial date, Jones would have to proceed to trial in his jail garb. (Id.) Payton was not able to procure civilian clothing for Jones, and Jones attended the trial in his prison attire.
On the first day of the trial, Jones told the court he was dissatisfied with his trial counsel for not filing "certain motions" and that he [Jones] wanted "another date to come back." (11/12/03 Tr. at 3, 14 (Ex. 3 to Pet.'s Reply).) Jones also was visibly tugging on his prison jump suit, causing the court to note "Mr. Jones, you keep grabbing your jump suit. Is there something wrong with it?" to which Jones responded "No, sir." (Id. at 26.) It is undisputed that neither Jones nor Steingold notified the court of Jones' desire to appear in civilian clothing. Jones argues that his lawyer should have objected on the record, sought a continuance, or provided Jones with suitable clothing for trial.
"The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." Estelle v. Williams, 425 U.S. 501, 503 (1976). Accordingly, "an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system." Id. at 504. The right not to be compelled to attend trial in jail garb is not absolute, however, and a defendant who does not object to his prison attire cannot argue that he was unconstitutionally compelled to stand trial before a jury wearing identifiable prison clothing. Whitman v. Bartow, 434 F.3d 968, 970-71 (7th Cir. 2006) (citing Estelle, 425 U.S. at 512-13). In this manner, the ...