The opinion of the court was delivered by: Judge Blanche M. Manning
Before the court is Andre Welch's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons discussed below, the motion is denied.
In August 1997, there was a bank robbery at the Illiana Federal Credit Union in Calumet City, Illinois. Welch's fingerprints were not identified at the crime scene; however, Welch matched the general description of the bank robber as provided by a bank teller and a bank customer. In addition, "a search of Welch's house uncovered an air gun with a brown handle similar to the gun the teller saw, as well as a family photograph where Welch was wearing a baseball hat and sunglasses similar to those worn by the bank robber." U.S. v. Welch, 368 F.3d 970, 971-72 (7th Cir. 2004), vacated in light of Booker, Welch v. U.S., 543 U.S. 1112 (2005).
Welch was indicted for the bank robbery in August 2002 and went to trial. At trial, several individuals, including a former roommate, a former co-worker and Welch's ex-wife, identified Welch as the robber on the bank surveillance tape. Welch was convicted. This court sentenced him to 160 months' imprisonment, which was upheld after a limited remand pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). See U.S. v. Welch, 429 F.3d 702 (7th Cir. 2005).
Welch initially filed a voluminous pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255, and the court set a briefing schedule on that motion. After reviewing the briefs filed by both Welch and the government, the court appointed counsel for Mr. Welch. See Order dated May 28, 2008, Dkt. #32-1. The court allowed counsel to file an amended § 2255 motion*fn1 and further directed the parties to submit position papers on whether an evidentiary hearing was necessary. The parties filed their position papers and the court agreed with Welch that an evidentiary hearing was necessary to address arguments made by Welch concerning communications which he had with his then defense counsel regarding an alleged four-year plea agreement. See Order dated October 20, 1998, Dkt. #56. The court set a hearing date of January 23, 2009, and directed that "the scope of the hearing shall include inquiry into not only the purported four-year plea offer by the government but also generally into defense counsel's conversations with Mr. Welch regarding his options of pleading guilty versus going to trial and the possible consequences of each." See Order dated January 13, 2009, Dkt. #64.
The evidentiary hearing was held as scheduled and the court directed the parties to brief the issues addressed during the hearing, i.e., trial counsel's efforts at pursuing a plea agreement and his communications with Welch regarding pleading guilty. The court's discussion of the issues associated with Welch's contention that counsel provided ineffective assistance of counsel due to his purported failure to pursue plea negotiations occurs at Section II.A.1.b. of this memorandum order and opinion. The remaining sections of this memorandum order and opinion address arguments made by Welch's appointed counsel in the amended § 2255 motion and reply in support, see Dkt. ## 51 and 57, unless otherwise indicated.
A. Ineffective Assistance of Counsel
A petitioner bears a "heavy burden in proving that [his] attorney rendered ineffective assistance of counsel." U.S. v. Holland, 992 F.2d 687, 691 (7th Cir. 1993). To prevail, the petitioner must establish that: (1) his attorney's representation "fell below an objective standard of reasonableness"; and (2) his defense was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). The petitioner bears the burden of both proof and persuasion that his counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed ... by the Sixth Amendment ... [and] that the deficient performance prejudiced the defense." U.S. v. Davenport, 986 F.2d 1047, 1049 (7th Cir. 1993), quoting Strickland, 466 U.S. at 687. The Strickland test also applies to claims of ineffective assistance of appellate counsel. Howard v. Gramley, 225 F.3d 784, 789-90 (7th Cir. 2000).
1. Counsel's Purported Failure to Communicate and Pursue Plea Offer
a. Alleged Four-Year Plea Offer*fn2
Welch first argues in his pro se motion that his attorney failed to inform him of a plea bargain offered by the government. According to Welch, his attorney told Welch's wife about the plea bargain but purportedly told her it "was not much of an offer" because the government was offering four years while the most Welch could be sentenced to was five years.
Welch's counsel filed an affidavit with the court responding to Welch's assertions.*fn3
Chiphe Affidavit, Dkt. #23, December 7, 2007. In that affidavit, defense counsel attests that he did not recall ever having any discussion with the government about a plea deal or receiving any written draft or proposed plea agreement from the government. Id. at ¶ 4.
Counsel's assertion is corroborated by an affidavit from the Assistant United States Attorney who was the lead prosecutor in the case against Welch, Charles Ex. In his affidavit, attached as a response to the § 2255 motion, AUSA Ex attests that he and counsel for Welch "never commenced the negotiation of or discussed the topic of a guilty plea either prior to the trial of this case, or after the conviction." Ex Affidavit, Dkt. #26-2, at ¶ 4. He further states that "[t]he government never tendered any guilty plea proposal to Mr. Chiphe. Any tender of such an offer would have only been in writing, after a request from defense counsel, and after preliminary review by a supervisor of the United States Attorney's Office. That never happened in this case." Id. at ¶ 5.*fn4 AUSA Ex further attests that "defendant's claim that the government offered him a 48 month plea deal prior to trial is a complete fabrication" because "any proposed agreement from the government would certainly have been based on a sentence far in excess of 48 months." Id.
Based on these affidavits, the court concludes that no plea deal was ever discussed between the government and Welch's counsel. Welch's self-serving statements and his wife's affidavit do not persuade the court otherwise in the absence of any evidence that a four-year plea deal was offered by the government. Gallo-Vasquez v. U.S., 402 F.3d 793 (7th Cir. 2005) (rejecting ineffective assistance of counsel claim in § 2255 motion where "aside from the allegation contained in Gallo-Vasquez's motion, there is no evidence that the government offered petitioner a deal. The motion does not attach a copy of the proposed agreement, state when or by whom the offer was made, or give any details other than to assert that it contemplated a 48-month sentence.").
Moreover, even assuming that there was a plea deal, Welch contradicts his own assertion that he was unaware of the plea deal when he states that on one occasion, his attorney asked Welch if his wife had mentioned the plea bargain to Welch. Indeed, Welch attaches an affidavit from his wife which states that "I did inform Welch of Mr. Chiphe's statement of the maximum sentence and the plea offer and based on confidence in Mr. Chiphe [sic] advice, Welch went to trial." Affidavit of Events, attached to Supplement to Amend 28 U.S.C. § 2255 Motion to Vacate Set Aside or Correct Sentence, Dkt. # 10-1.
Further, while Welch asserts that his attorney never "discuss[ed]" the plea offer, Welch at the same time claims that he did not inquire about a plea deal because his attorney had assured him that he could receive only 60-72 months imprisonment while the plea deal was only for four years and thus "was not worth taking." Accordingly, Welch's assertion that his counsel failed to communicate a plea offer is unsupported and indeed, even contradicted by the facts as set forth by Welch. Hughes v. U.S., No. 1:02CR45-8, 2007 WL 841940, at **4-5 (March 19, 2007 W.D.N.C.)(concluding that no evidentiary hearing was necessary on § 2255 ineffective assistance of counsel claim where petitioner alleged that trial counsel should have instructed the petitioner to accept a seven-year plea deal where trial counsel submitted affidavit that the plea offer did not include a seven-year term, the affidavits submitted by petitioner and his wife were contradictory, and petitioner did not include copy of alleged seven-year plea offer).*fn5
For these reasons, to the extent that Welch seeks relief under § 2255 based on counsel's alleged ineffective assistance for failing to tell him of a purported four-year plea offer, that request is denied.
b. Discussions Between Counsel and Welch Regarding Pleading Guilty
Welch also asserts in the post-hearing briefs, which were submitted by counsel on Welch's behalf, that Welch's trial counsel's failure to pursue plea negotiations in this matter constituted ineffective assistance of counsel. Welch appears to make several arguments on this front that are interrelated and the court has distilled the arguments down to the following position: Welch's counsel's failure to pursue plea negotiations, particularly in light of the government's purported amenability to a plea as demonstrated by the Rule 16.1 letters (described below), was unreasonable and led Welch to not be fully informed of his options before going to trial.*fn6
The Seventh Circuit reviews ineffective assistance of counsel claims as follows:
Our examination of an ineffectiveness of counsel claim is highly deferential to counsel, presuming reasonable judgment and declining to second guess strategic choices. In order to determine whether the defendant has met the performance prong, we consider the reasonableness of counsel's conduct in the context of the case as a whole, viewed at the time of the conduct, and there is a strong presumption that any decisions by counsel fall within a wide range of reasonable trial strategies. With respect to the prejudice prong, the defendant must be able to demonstrate that the complained of deficiency resulted in a reasonable probability that in the absence of error the result of the proceedings would have been different and that the proceeding was fundamentally unfair or unreliable.
Valenzuela v. U.S., 261 F.3d 694, 698-99 (7th Cir. 2001)(internal citations, quotations ...