The opinion of the court was delivered by: Reagan, District Judge
I. Introduction and Background
Now before this Court is Randy Wayne Riley's petition to vacate, set aside or correct sentence under 28 U.S.C. § 2255. Analysis of the petition begins with an overview of the procedural history of the underlying criminal case (Case No. 06-cr-30103-MJR).
On May 3, 2006, a grand jury charged Riley by Indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and with possession of a sawed-off shotgun, in violation of 26 U.S.C. §§ 5861(d) and 5871. On June 20, 2007, Riley entered an open guilty plea to both charges against him. On November 2, 2007, this Court sentenced Riley to, inter alia, 188 months in prison (94 months on each count, to be served consecutively). Judgment was entered. Riley did not appeal his judgment or sentence.
On November 3, 2008, Riley moved to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. His petition presented three claims of ineffective assistance of counsel and a claim of prosecutorial misconduct. The Government timely responded to Riley's petition on November 20, 2008. Riley moved to amend his petition on April 23, 2009, in order to add a fourth ineffective assistance of counsel claim. The Court granted Riley's motion and - because of the difficulties cited by Riley in drafting his petition - construed the additional claim as part of his original § 2255 petition rather than requiring him to file an amended petition. The Government responded to the supplemental claim on June 15, 2009. Riley failed to avail himself of the opportunity to file a reply brief.
The Court set an evidentiary hearing for September 9, 2009, on the sole issue of whether Riley told his counsel, Federal Public Defender Philip Kavanaugh ("Kavanaugh"), to file a notice of appeal. Taylor v. United States, 287 F.3d 658, 660 (7th Cir. 2002)(where the Court is confronted with an evidentiary conflict, a judge must hold an evidentiary hearing). An evidentiary hearing on the other issues raised is not warranted. These issues can be resolved on the existing record, which conclusively demonstrates that Riley is entitled to no relief. See Rule 8(a) of RULES GOVERNING SECTION 2255PROCEEDINGS; Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007); Gallo-Vasquez v. United States, 402 F.3d 793, 797 (7th Cir. 2005); Galbraith v. United States, 313 F.3d 1001, 1010 (7th Cir. 2002).
For the reasons stated below, the Court now dismisses Riley's § 2255 petition.
28 U.S.C. § 2255 authorizes a federal prisoner to ask the court which sentenced him to vacate, set aside, or correct his sentence, if "the sentence was imposed in violation of the Constitution or laws of the United States, or ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law."
Relief under § 2255 is limited. Unlike a direct appeal, in which a defendant may complain of nearly any error, § 2255 proceedings may be used only to correct errors that vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude. See, e.g., Corcoran v. Sullivan, 112 F.3d 836, 837 (7th Cir. 1997)(§ 2255 relief is available only to correct "fundamental errors in the criminal process").As the Seventh Circuit has declared, § 2255 relief "is appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004), citing Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991). Accord Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996)("... relief under 28 U.S.C. § 2255 is reserved for extraordinary situations"). Section 2255 cannot be used as a substitute for a direct appeal or to re-litigate issues already raised on direct appeal. Coleman v. United States, 318 F.3d 754, 760 (7th Cir.), cert. denied, 540 U.S. 926 (2003). AccordTheodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989)(§ 2255 petition "will not be allowed to do service for an appeal.").
In the case at bar, Riley presents four claims for § 2255 relief: (1) trial counsel failed to file a motion to dismiss Count 2 of his indictment on Double Jeopardy grounds; (2) trial counsel lied to him by telling him if he pled guilty he would receive a 5-year sentence; (3) trial counsel failed to object to his sentence on Double Jeopardy grounds; and (4) trial counsel failed to file a notice of appeal. An additional claim raised by Riley - that the Government committed prosecutorial misconduct by charging him in both counts of his indictment with the same crime ("double jeopardy") just to manipulate his sentence - overlaps substantially with his third claim of ineffective assistance, so the Court will consider those together -- construing Riley's petition to present four grounds for § 2255 relief.
A. Ineffective Assistance of Counsel, Grounds 1 - 3
The Court now turns to the merits of Riley's ineffective assistance claims, bearing in mind the test first announced in Strickland v. Washington, 466 U.S. 668, 688-94 (1984).
As the Seventh Circuit has stated: "The familiar standard of Strickland requires a showing that: (1) [Petitioner's] counsel was objectively deficient; and (2) this deficient performance so prejudiced his defense that [Petitioner] was deprived of a fair trial." Shell v. United States, 448 F.3d 951, 954 (7th Cir. 2006), citing Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000), and Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996).None of Riley's § 2255 claims satisfies this dual-pronged standard.
As to the first prong, to be constitutionally deficient, counsel's performance must fall below an objective standard of reasonableness under prevailing professional norms. Shell, 448 F.3d at 954, citing Granada v. United States, 51 F.3d 82, 83 (7th Cir. 1995). The Supreme Court has instructed: "a court must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance." Shell, 448 F.3d at 954, quoting Strickland, 466 U.S. at 689.
Since counsel is presumed to be effective, a § 2255 petitioner "bears a heavy burden in making a winning claim based on ineffective assistance of counsel." Shell, 448 F.3d at 955, citing Fountain, 211 F.3d at 434, and United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995). Accord United States v. Banks, 405 F.3d 559, 568 (7th Cir. 2005)("There is a strong presumption for finding counsel effective...."). Moreover, as a general rule, failing to pursue a particular issue is not deficient performance. Shell, 448 F.3d at 955.
First, Riley contends that trial counsel failed to invoke the Double Jeopardy clause prior to his guilty plea and sentencing (Grounds 1 and 3). These claims fail because Riley can show neither deficient performance nor prejudice.
Government counsel correctly points out that a conviction for both possession of an unlawful firearm under 26 U.S.C. § 5861 and possession of a firearm by a convicted felon under 18 U.S.C. § 922, does not violate the prohibition against Double Jeopardy even if both charges involve the same firearm. Faced with an almost identical issue, the Seventh Circuit declared that a Double Jeopardy claim in a § 2255 petition was "meritless" where the petitioner was charged in separate counts with possession of an unregistered machine gun and possession of a firearm by a convicted felon. Williams v. United States, 805 F.2d 1301, 1309 (7th Cir. 1986), citing United States v. Ching, 682 F.2d 799 (9th Cir. 1982).
Riley's claim that his counsel lied to him by telling him that he would receive only a five-year sentence if he pled guilty (Ground 2) lacks credibility. The evidence is that he pled guilty with the full expectation that he would receive the 188-month sentence that the Court imposed. At the June 20, 2007, plea hearing, the undersigned Judge explained the possible penalties to which Riley was subject:
MR. RILEY: I understand what is going on on this part. I know it is what my attorney had told me. I was hoping ten years. You know, I'm not ...