The opinion of the court was delivered by: James B. Zagel United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner was convicted of conspiracy with intent to distribute kilogram quantities of cocaine, possession with intent to distribute fifteen kilograms of cocaine, attempted possession with intent to distribute twenty-five kilograms of cocaine and two counts of false statements on his 1992 and 1993 tax returns. I sentenced him to life in prison under a mandatory guideline regime. His conviction and sentence were upheld on appeal. United States v. Webster, 151 F.3d 1034 (7th Cir. 1998) (1998 WL 322595). Certiorari was denied October 8, 1998 and he filed for § 2255 relief. About eighteen months later, he sought to add more claims by amendment to the petition.
I examine his claims to determine (1) whether those in the amended petition relate back to the original petition under Mayle v. Felix, 545 U.S. 6444 (2005), (2) whether any of the claims are properly raised in a post-appeal § 2255 petition, and (3) whether any of the non-foreclosed claims have merit. I may also weigh the merits of foreclosed claims.
A. Ineffective Assistance of Counsel at Trial and Appeal
Some of these claims were timely raised, but the amendment added four specifications.*fn1
Three of these four (the ones that could have been raised on appeal) should not, I think, be deemed to relate back to the original ineffectiveness claim and are time-barred.
The original allegation of ineffective counsel was based on failures to investigate, to inform the client of a conflict of interest, to refuse stipulations, to tender instruction on using transcripts, and failure to object to evidence not admitted at trial. Three of the later allegations are just over the borderline that would distinguish new grounds from grounds that relate back. I go on to examine their merits.
Judicial examination of claims of ineffective assistance of counsel requires considerable deference to the judgment of defense counsel. Objective standards of reasonableness apply and, even where performance is deficient, prejudice to the defendant must be shown. United States v. Lindsay, 157 F.3d 532 (7th Cir. 1998), Strickland v. Washington, 466 U.S. 668 (1984).
Failure of counsel to tender instructions on use of audio transcripts, and, in particular, Transcript 14, was reasonable. There were no significant discrepancies between tape and transcript cited by Petitioner and none I recall from the trial. What was inaudible could not be considered because it was inaudible, and inaudible portions were not substantial. The bottom line is that Petitioner does not show prejudice.
The claim of failure to offer a limiting instruction under Rule 404(b) is, at bottom, an attack on the Rule 404(b) evidence, a claim to be raised on appeal, not here. It is reasonable for a lawyer to decide that limiting instructions do not help, and may hurt, by directing attention to the evidence which was not all that strong. That other lawyers would reasonably hold a contrary view does not make the case for Petitioner.
The failure to object to materiality on the tax counts was not of significance in this case. Failure to report income is obviously material, as is evidence of cash expenditures twice the amount of declared income. A rational jury would always find materiality in these circumstances. Reasonable counsel in this case might well think that to argue materiality to a jury would hurt his client. Absence of objection on the point did not prejudice Petitioner.
Defense counsel's stipulation to the admission of money orders and receipts is within the range of reasonableness in light of expert evidence linking handwriting and the money orders to Petitioner.
The uncalled witnesses were not constitutional-class mistakes of counsel -- decisions outside the range of reasonableness. Calling a witness to say that she (Mrs. Bussle) had not purchased a car from Petitioner was, in the context of this case, a minor glitch in the prosecution's narrative. Proving a prosecution witness (a DEA agent) is wrong about a relatively unimportant detail is often taken by a jury to be a concession of all else. The other witness whose supposed testimony is not supported by affidavit or other exhibit would ...