The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On October 16, 2008, Petitioner Eric Curtner filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1). Petitioner also filed a Memorandum of Law (#2). On January 5, 2009, the Government filed its Response (#6), and on January 26, 2009, Petitioner filed a Reply (#7). On May 8, 2009, Petitioner filed a Motion to Take Judicial Notice (#9). Finally, on May 15, 2008, Petitioner filed a Motion for Leave to File 2255 Amendments (#10). For the reasons that follow, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1), as amended, is DENIED.
On January 6, 2006, in Case No. 06-CR-20003, Petitioner was indicted on one count of possession of a firearm, namely, a destructive device that was an explosive and incendiary bomb, commonly known as a "pipe bomb", that was not registered to him in the National Firearms Registration and Transfer Record, in violation of Title 26, United States Code, Section 5861(d). Prior to trial, the Petitioner, against the advice of his court appointed counsel, filed a pro se motion to suppress evidence. The Petitioner challenged the validity of the traffic stop that led to the seizure of the pipe bomb, Petitioner's possession of which formed the basis for the charge in the indictment. Following an evidentiary hearing this court denied Petitioner's motion, concluding that the traffic stop and seizure of the pipe bomb by the officers involved in the traffic stop were lawful. Specifically, this court found that the testimony of the officers involved in the traffic stop, including Jeff Branson, was credible, and that the Petitioner's testimony was not credible.
On October 10, 2006, the case proceeded to jury trial. At trial, the Government's evidence established that (1) Petitioner was found in possession of a pipe bomb; (2) Petitioner admitted to possession of the pipe bomb; and (3) Petitioner referred to the pipe bomb as a "fire bomb." In light of this evidence, the defense counsel's strategy was to challenge Petitioner's knowledge as to whether the pipe bomb was an explosive device. See United States v. Curtner, No. 07-2007 (7th Cir. Jan. 18, 2008) (unpublished order). When instructing the jury on the law, this Court advised the jury that to prove Petitioner guilty of the offense charged, the Government was required to prove that: (1) Petitioner knowingly possessed a firearm; (2) Petitioner knew that the firearm possessed the characteristics of a destructive device; and (3) the firearm was not registered in the National Firearms Registration and Transfer Record. On October 11, 2006, a jury found Petitioner guilty of the offense charged in the indictment.
On October 17, 2006, Petitioner filed a pro se motion for a new trial, arguing that (1) his counsel was ineffective in failing to file a motion to suppress, and (2) counsel was ineffective at trial. On November 28, 2006, this Court denied Petitioner's motion, concluding that trial counsel "ably represented [Petitioner] at the evidentiary hearing on [Petitioner's] pro se motion to suppress and at trial." This Court further concluded that Petitioner had failed to establish that, but for counsel's actions, the result of his case would have been different.
On April 30, 2007, this Court sentenced Petitioner to 120 months imprisonment, three years of supervised release, and a $100 special assessment. On direct appeal, Petitioner's counsel moved to withdraw, arguing that she could find no non-frivolous basis for the appeal. On January 18, 2008, the Seventh Circuit granted the motion and dismissed Petitioner's appeal. In granting the motion, the Seventh Circuit concluded that there were no non-frivolous grounds to challenge this Court's denial of Petitioner's motion to suppress, the sufficiency of the evidence, or Petitioner's sentence. United States v. Curtner, No. 07-2007 (7th Cir. Jan. 18, 2008) (unpublished order). The Seventh Circuit later rejected Petitioner's pro se motion for rehearing. United States v. Curtner, No. 07-2007 (7th Cir.) (docket entry 2/19/08).
On October 16, 2008, Petitioner filed the instant motion under 28 U.S.C. § 2255, alleging the following claims: (1) that his counsel was ineffective during the trial; (2) that his counsel was ineffective because he failed to fully investigate the facts surrounding the initial traffic stop; (3) that he is actually innocent of the offense charged because the activity he was engaged in was legal; (4) that he was improperly sentenced by the court; and (5) that his appellate counsel was ineffective.
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 counsel's performance prejudiced the Petitioner. Bednarski v. United States, 481 F.3d 530, 535 (7th Cir. 2007), citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In assessing reasonableness, this court must start with a presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Yack, 139 F.3d 1172, 1176 (7th Cir. 1998), quoting Strickland, 466 U.S. at 689. Therefore, the defendant "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Yack, 139 F.3d at 1176, quoting Strickland, 466 U.S. at 689. In order to show prejudice, the defendant must show that "but for his counsel's unprofessional errors, there is a reasonable probability that the result in his case would have been different." Reeves v. United States, 255 F.3d 389, 393 (7th Cir. 2001).
Petitioner claims, in the first instance, that he received ineffective assistance of counsel because his counsel failed to "fully and adequately investigate a viable defense available to the movant . . . ." Petitioner advances the argument that it was legal to possess a "fire bomb" for recreational purposes only, and if the facts had been adequately investigated the jury would have determined that Petitioner legally possessed the "fire bomb" with the intent only to use it as a firework. However, the Seventh Circuit stated, in this case, that "the knowledge element is met when the defendant is aware that the features of the device brought it within the realm of regulation." United States v. Curtner, No. 07-2007 (7th Cir. Jan. 18, 2008) (unpublished order). The Seventh Circuit has recognized that, in cases such as this one where the device in question was fully assembled, "the only issue is whether the objective characteristics of the device bring it within the ambit of the statute; subjective intent regarding the device is not an appropriate consideration in that inquiry." United States v. Johnson, 152 F.3d 618, 627 (7th Cir. 1998).
Therefore, because the "fire bomb" in question was complete and was found to objectively meet the characteristics of a destructive device, an argument based on the subjective intent of the Petitioner would have been frivolous. Thus, Petitioner is unable to demonstrate that he suffered any prejudice from defense counsel's failure to challenge the intent of the Petitioner as to the use of the "fire bomb."
Petitioner next claims that he received ineffective assistance of counsel because his lawyer failed to fully investigate the facts surrounding the initial traffic stop, preventing counsel from adequately presenting a motion to suppress evidence. In support of this claim, Petitioner attempts to call into question the credibility of the officer's testimony in relation to the initial traffic stop; specifically attempting to challenge Branson's testimony that he reasonably believed that Charlie Cowger, a person Branson knew not to possess a valid driver's license, was the driver of the car he subjected to a traffic stop. However, this Court has previously concluded that Branson's testimony was credible, and the Petitioner's testimony was not credible. This court agrees with the Government that the new allegations contained in this motion do not challenge this court's conclusion in regards to Branson's testimony. Furthermore, this court previously concluded when denying Petitioner's motion for a new trial that there was no ineffective assistance of counsel, stating that trial counsel "ably represented [Petitioner] at the evidentiary hearing on [Petitioner's] pro se motion to suppress and at trial" and also concluded that Petitioner had failed to establish that but for counsel's actions, the result of his case would have been different. This court therefore concludes that Petitioner's attempt to once again challenge the sufficiency of evidence does not establish that his counsel was ineffective.
Petitioner next argues that he is actually innocent of the crime charged. This claim is based upon an argument of sufficiency of the evidence at trial that the pipe bomb was within the scope of the statute. The jury, this Court, and the Seventh Circuit have previously rejected this argument. On direct appeal, the Seventh Circuit concluded that a challenge to the sufficiency of the evidence would be "frivolous," as "[t]here is ample evidence for a rational jury to have concluded that Curtner did, in fact, know that the device was within the scope of the statute." United States v. Curtner, No. 07-2007 (7th Cir. Jan. 18, 2008) (unpublished order). The Seventh Circuit also stated, "[t]he nature and design of the 71/2 -inch bomb could lead a rational jury to conclude that Curtner knew it was a type of explosive that one must register to legally possess, and no ordinary firecracker." United States v. Curtner, No. ...