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Nitch v. United States

February 20, 2009

DOUGLAS NITCH, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on the Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Douglas Nitch (Doc. 1). The Government has responded to the motion, and Petitioner has replied. For the following reasons, the Court DENIES the Motion.

BACKGROUND

I. Procedural Posture

On December 5, 2002, Douglas Nitch was indicted by a federal grand jury on charges of conspiracy to manufacture, possess with intent to distribute, and to distribute 500 grams or more of a mixture or substance containing methamphetamine A fourth superceding indictment likewise charged Nitch with conspiracy to manufacture, possess with intent to distribute, and to distribute 500 grams or more of a mixture or substance containing methamphetamine. Nitch proceeded to trial and was found guilty by a jury of the conspiracy charge. By special verdict, the jury found that the Government had proved beyond a reasonable doubt that the conspiracy involved 500 grams or more of a mixture and substance containing methamphetamine . This Court sentenced Nitch to a term of 168 months in prison. Nitch appealed his conviction, contending that there was an impermissible variance between the single conspiracy charged in the indictment and the multiple conspiracies proven at trial. Nitch also appealed his sentence, contending it was unreasonable. The Seventh Circuit Court of Appeals affirmed both the conviction and the sentence. Nitch timely filed this § 2255 action on February 4, 2008.

II. Facts

At trial, evidence was presented to establish the following facts. In 1999, while he was still a high school student, Nitch learned how to manufacture methamphetamine (meth). He and various meth addicts in McLeansboro, Illinois taught each other how to produce meth and helped each other get the supplies necessary to produce meth with the goal of producing enough of the drug to feed their shared addictions. Toward this end, Nitch cooked meth and taught others how to cook meth. Then, in late 2000 or early 2001, Nitch left McLanesboro and moved to Missouri. The McLeansboro conspiracy continued on without Nitch. Certain individuals who joined the conspiracy after Nitch's move to Missouri never met nor had contact with Nitch.

ANALYSIS

The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). "Relief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255.

A § 2255 motion does not substitute for a direct appeal. A defendant cannot raise in a § 2255 motion constitutional issues that he could have, but did not, raise in a direct appeal unless he shows good cause for and actual prejudice from his failure to raise them on appeal or unless failure to consider the claim would result in a fundamental miscarriage of justice. Massaro v. United States, 538 U.S. 500, 504 (2003); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. The failure to hear a claim for ineffective assistance of counsel in a § 2255 motion is generally considered to work a fundamental miscarriage of justice because often such claims can be heard in no other forum. They are rarely appropriate for direct review since they often turn on events not contained in the record of a criminal proceeding. Massaro, 538 U.S. at 504-05; Fountain, 211 F.3d 433-34. In addition, the district court before which the original criminal trial occurred, not an appellate court, is in the best position to initially make the determination about the effectiveness of counsel in a particular trial and potential prejudice that stemmed from that performance. Massaro, 538 U.S. at 504-05. For these reasons, ineffective assistance of counsel claims, regardless of their substance, may be raised for the first time in a § 2255 petition.

In the instant petition, Nitch contends that his trial counsel was constitutionally deficient in the following ways: 1) counsel failed to challenge Nitch's relevant conduct at sentencing, 2) counsel failed to establish that Nitch had withdrawn from the charged conspiracy at a point in time outside of the relevant five year statute of limitations, 3) counsel failed to properly advise Nitch of the consequences of pleading not guilty and proceeding to trial.

I. Ineffective Assistance of Counsel Claims

The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970). A party claiming ineffective assistance of counsel bears the burden of showing (1) that his trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Fountain, 211 F.3d at 434. The plaintiff's burden is heavy because the Strickland test is "highly deferential to counsel, presuming reasonable judgment and declining to second guess strategic choices." United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (quotations omitted).

To satisfy the first prong of the Strickland test, the plaintiff must direct the Court to specific acts or omissions of his counsel. Fountain, 211 F.3d at 434 (citing United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995)). The Court must then consider whether in light of all of the circumstances counsel's performance was outside the range of professionally competent assistance. Id. The Court's review of counsel's performance must be "highly deferential[,] . . . indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Counsel's performance must be evaluated keeping in mind that an attorney's trial strategies are a matter of ...


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