The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge
Petitioner Edward Thomas Jung ("Jung") has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He challenges the 109-month sentence imposed for his conviction on eight counts of wire fraud and two counts of securities fraud. In his petition, Jung seeks to have his sentence corrected on five grounds: (1) constitutionally ineffective assistance of counsel at trial and sentencing; (2) the sentencing judge was not in the best position to consider Jung's history and characteristics and the nature and circumstances of the offense when imposing Jung's sentence because he was not the trial judge; (3) the sentence imposed did not reflect Jung's extensive level of cooperation; (4) the sentence was greater than necessary given Jung's personal history, early cooperation, post-offense conduct, and community involvement; and (5) the enhancement for jeopardizing a financial institution in calculating the applicable sentencing guidelines range was excessive given the facts and circumstances of the case. Jung requests an evidentiary hearing if the court deems one necessary. For the following reasons, Jung's petition is denied.
On February 18, 2003, a grand jury returned a ten-count indictment against Jung, charging that he had defrauded investors in the Strategic Income Fund, LLC ("SIF") by falsely representing that their pledged assets would be used solely to collateralize trading on their behalf. Jung pled not guilty and proceeded to trial, which began on January 13, 2004. On February 5, 2004, the jury returned a guilty verdict on all counts. Defendants requested that sentencing be continued several times. While Jung was awaiting sentencing, the case was reassigned to Judge Milton I. Shadur because the assigned judge was on a leave of absence from the court. A sentencing hearing was held in front of Judge Shadur on May 25, 2005. Judge Shadur determined that a midpoint guidelines sentence of 109 months was appropriate. He denied bond pending appeal on July 12, 2005, finding that the conditions for bond were not met. A final sentencing hearing was held on August 31, 2005, at which time a commitment order was entered.
Jung timely filed a notice of appeal on September 1, 2005, attacking both his conviction and sentence. On appeal, Jung challenged (1) the admission of his former attorney's statements as party admissions at trial, and (2) the district court's consideration of the sentencing factors under 18 U.S.C. § 3553(a). United States v. Jung, 473 F.3d 837, 841 (7th Cir. 2007). The Seventh Circuit agreed that the admission of Jung's former attorney's statements was improper, but concluded that the district court's error was harmless. Id. at 841--43. The Seventh Circuit also concluded that Jung's sentence was reasonable "[b]ecause the district court considered and adequately discussed the factors in § 3553(a), chose a sentence within the advisory range of the 1997 Guidelines, and adequately explained the reasoning for sentencing Jung to the midpoint of the sentencing range." Id. at 845. Jung's petition for a rehearing and suggestion of a rehearing en banc was denied on March 12, 2007. Jung then filed a petition for certiorari with the United States Supreme Court, which was denied on October 1, 2007. His request for a rehearing was denied on January 7, 2008. Subsequently, on July 9, 2008, Jung filed this timely motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Relief under § 2255 "is reserved for extraordinary circumstances." United States v. Hays, 397 F.3d 564, 566 (7th Cir. 2005) (citations and internal quotation marks omitted). A district court must grant a § 2255 motion to vacate, set aside, or correct a sentence when the petitioner establishes "that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Id. at 566--67 (citations and internal quotation marks 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; Cooper v. United States, 378 F.3d 638, 641--42 (7th Cir. 2004) (district court did not abuse its discretion in denying petitioner an evidentiary hearing where petitioner did not provide additional facts or assertions that would warrant a hearing).
On a § 2255 motion, the district court may not reconsider issues that were raised on direct appeal absent changed circumstances. Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) ("A § 2255 motion is 'neither a recapitulation of nor a substitute for a direct appeal.'" (quoting McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996)). Claims that were not raised on direct appeal are procedurally defaulted absent a showing of cause and prejudice or actual innocence. Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008) (citing Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed. 2d 828 (1998)). The Supreme Court has held, however, that ineffective assistance of counsel claims not raised on direct appeal are not subject to the cause and prejudice rule. Massaro v. United States, 538 U.S. 500, 509, 123 S.Ct. 1690, 155 L.Ed. 2d 714 (2003).
I. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, the petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness," and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). The petitioner "bears a heavy burden in establishing an ineffective assistance of counsel claim," United States v. Trevino, 600 F.3d 333, 338 (7th Cir. 1995), particularly since the Strickland test "is highly deferential to counsel, presuming reasonable judgment and declining to second guess strategic choices." United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997) (internal quotation marks omitted).
To satisfy the first prong of the Strickland test, the petitioner must direct the court to specific acts or omissions of his counsel. Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000)(citing Trevino, 60 F.3d at 338). 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. Counsel's performance must be evaluated while remembering that an attorney's trial strategies are a matter of professional judgment and often turn on facts not contained in the trial record. Id. To satisfy the second prong of the Strickland test, the plaintiff must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A court need not address both prongs of the Strickland test if one provides the answer; that is, if a court determines that the alleged deficiency did not prejudice the defendant, the court need not consider the first prong. United States v. Fudge, 325 F.3d 910, 924 (7th Cir. 2003) (citing Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir. 2001)).
Jung identifies three instances that he claims demonstrate that he did not receive effective assistance at trial and sentencing: (1) failure to challenge the exclusion of an audit done of SIF's trading account, (2) failure to properly challenge the omission of a jury instruction on reliance on professionals, and (3) failure to file an objection and response to the presentence investigation report and raise other arguments that would have led the sentencing judge to impose a more just sentence.
Jung, however, fails to recognize that his counsel did in fact do the second and third things he claims they failed to, precluding him from arguing ineffective assistance on these grounds. Counsel submitted a proposed jury instruction on reliance on professionals, see Def.'s Second Set of Proposed Jury Instructions, R. 55, and argued extensively for this instruction. See Trial Tr. 2146--50. His challenge to the court's decision to give it in only modified form was recognized by the court when it prevented him from further argument on the issue, noting that he had made his point. See id. at 2154:19--21 ("Mr. Puccio: If I may, your Honor. / The Court: Well, no, you may not. You have argued this and I just want to go ahead."). Jung's counsel continued to challenge this court's decision on the issue, stating that refusal to instruct the jury on the issue of reliance on professionals was a potential issue for appeal. See Letter from Thomas P. Puccio to Judge Milton Shadur (June 3, 2005) at 2, 9--10, R. 109. Further, although Jung claims that counsel failed to file objections to the presentence report and a defendant's version of the offense, allegedly leaving Judge Shadur with an incorrect assessment of the case, Jung's counsel actually filed a statement of the case for the court to consider at sentencing and objected at length to the presentence report during the sentencing hearing. See Def. Jung's Statement of the Case, R. 95; Sentencing Hr'g Tr. 6--7, 19--30, May 25, 2005. Counsel also filed two rounds of comments on the applicable guidelines calculations and a response to the government's answer to Jung's comments. See Def.'s Comments on Applicable Sentencing Guidelines, R. 80; Def.'s Further Comments on Applicable Sentencing Guidelines, R. 88; Def.'s Reply to Government's Ans. to Def.'s Comments on Sentencing, R. 94. These documents raised various arguments regarding the applicability of specific guideline provisions and § 3553(a) considerations, ...