The opinion of the court was delivered by: Judge Joan H. Lefkow
Petitioner, Charles Arthur Hinshaw, has filed an amended motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He challenges the 156-month sentence imposed for his conviction on counts I, III, and IV of the superseding indictment filed on November 5, 2002 in Case No. 91 CR 163.*fn1 See Criminal Docket No. 141.*fn2 Hinshaw asserts four claims (1) denial of meaningful representation on direct appeal; (2) constitutionally ineffective assistance of counsel; (3) use of perjured testimony at trial; and (4) double jeopardy.*fn3
Hinshaw also requests an evidentiary hearing. For the reasons stated herein, Hinshaw's petition and request for a hearing are denied.
Hinshaw was arrested and appeared before this court on March 5, 1991 under the alias "Charles Lee Hamilton."*fn5 On October 10, 1991, the original indictment was filed against him and his co-defendant, Derrick Smiley.*fn6 Hinshaw was arraigned on October 23, 1991, entered a plea of not guilty and was released on bond. Apparently due to Hinshaw's failure to appear in court, however, his pretrial release was revoked and a bench warrant issued on May 28, 1992. See N.D. Ill. Crim. Dkt. No. 92. On June 9, 1992, Judge Nordberg set Hinshaw's trial for June 22, 1992 and ruled that Hinshaw would be tried in absentia on that date if he failed to appear. N.D. Ill. Crim. Dkt. No. 103. On June 19, 1992, however, Judge Nordberg granted an oral motion to sever and vacated his prior ruling that Hinshaw be tried in absentia. N.D. Ill. Crim. Dkt. No. 112.Smiley proceeded to trial alone on June 19, 1992 and was found not guilty on all counts. Hinshaw's case was reassigned to the fugitive calendar.
On October 2, 1997, while Hinshaw was a fugitive in his criminal case in Illinois, a criminal complaint was filed against him in the United States District Court for the District of Kansas, Case No. 97-cr-10125,*fn7 in connection with his arrest for possessing approximately 13 gallons of PCP. See Gov't's Mot. to Admit Certain Evidence Pursuant to Federal Rule of Evidence 404(b) at 4 (N.D. Ill. Crim. Dkt. No. 153). When Hinshaw was arrested, he gave the alias "Clyde A. Dawson," but the government later discovered that his fingerprints matched those of a man named "Ron Arthur Taylor." Id. at 5. The government concedes that due to an error, "the FBI [did] not associate the fingerprints of 'Charles Hamilton' with those of 'Ron Arthur Taylor'" at the time Hinshaw was taken into federal custody on the charges in Kansas. Id. at 5 n.3. That error was not remedied until 2001 via a comparison of arrest photographs of "Charles Hamilton" and "Ron Arthur Taylor." Id.
Hinshaw was remanded into custody in Kansas on October 3, 1997. D.C. Kan. Crim Dkt. No. 2. On April 28, 1998, he pled guilty to the federal charges brought against him there under the name "Ron Arthur Taylor." He was sentenced to sixty months imprisonment, which he appears to have served in California.*fn8 D.C. Kan. Crim. Dkt. No. 68. It is unclear when Hinshaw was released.
On October 25, 2001, more than nine years after Judge Nordberg entered the bench warrant against him, Hinshaw, still using an alias, was arrested in California. He was removed from California to the Northern District of Illinois and his case was reassigned to this judge's calendar. Hinshaw was again arraigned on the original indictment on April 8, 2002, at which time he revealed that his true name was Charles Arthur Hinshaw. On November 5, 2002, the government filed the superseding indictment against Hinshaw that added a fourth count for failing to appear before a court as required in violation of 18 U.S.C. § 3146(a)(1).*fn9 N.D. Ill. Crim. Dkt. No. 141. Hinshaw was arraigned on the superseding indictment on November 26, 2002 and entered a plea of not guilty. He proceeded to trial on July 21, 2003, represented by Terrence Roden. Four days later, a jury convicted Hinshaw on counts I, III, and IV but acquitted him on count II, the possession charge. On February 3, 2004, Hinshaw moved to dismiss Roden as his counsel. N.D. Ill. Dkt. No. 188. Roden was replaced by Gabriel Plotkin of the Federal Defender's Office, who represented Hinshaw at the sentencing hearing on November 10, 2005, at which he received a term of 156 months' imprisonment.*fn10 Thereafter, Hinshaw appealed. See United States v. Hinshaw, No. 05-4502 (7th Cir. filed Dec. 5, 2005).*fn11
On December 9, 2005, Plotkin filed a motion in the Seventh Circuit to withdraw as Hinshaw's attorney. On May 11, 2006, the Seventh Circuit granted Plotkin's motion and appointed Jerold Solovy of Jenner & Block LLP to represent Hinshaw on appeal. See N.D. Ill. Crim. Dkt. No. 271. Solovy and two other attorneys from his firm continued to represent Hinshaw on appeal for more than six months. On November 17, 2006, ten days prior to the date Hinshaw's opening brief was due, Solovy filed a motion in the Seventh Circuit to withdraw as appellate counsel. In his motion to withdraw, Solovy informed the court that he had conferred with Hinshaw, carefully researched and evaluated the grounds for relief, and diligently prepared an appellate brief which had been sent to Hinshaw for his review and approval on November 10, 2006. Shortly thereafter, however, Hinshaw informed his appointed counsel that he no longer wanted to be represented by them and refused to further discuss the matter. On November 29, 2006, the Seventh Circuit suspended briefing on the appeal and ordered Hinshaw to personally file a response to Solovy's motion to withdraw, advising it as to whether he wanted to pursue his appeal without counsel. On December 29, 2006, Hinshaw filed a motion captioned "MOTION TO PROCEED ON APPEAL IN PRO-SE, AND UNDER CHARLES A. HINSHAW AND NOT CHARLES LEE HAMILTON." On January 17, 2007, the Seventh Circuit granted Solovy's motion to withdraw and permitted Hinshaw to proceed pro se on appeal. Hinshaw filed his appellate brief pro se on March 28, 2007. On July 5, 2007, the Seventh Circuit affirmed Hinshaw's conviction and sentence, and denied his petition for a rehearing on September 18, 2008. United States v. Hinshaw, No. 05-4502, 243 Fed. Appx. 179 (7th Cir. 2007) reh'g and reh'g en banc denied (Sept. 18, 2007). On October 8, 2008, Hinshaw filed this § 2255 petition.
Collateral relief under 28 U.S.C. § 2255, the federal habeas corpus statute, "is reserved for extraordinary situations." United States v. Hayes, 397 F.3d 564, 566 (7th Cir. 2005) (citations omitted). The 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 court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); Cooper v. United States, 378 F.3d 638, 641-42 (7th Cir. 2004) (district court did not abuse its discretion by denying petitioner an evidentiary hearing where petitioner did not provide additional facts or assertions that would warrant a hearing).
I. Denial of Meaningful Representation on Appeal (Ground I)*fn12
Hinshaw's first ground for § 2255 relief is based on his assertion that he was denied meaningful representation on direct appeal. Hinshaw argues that it was not his intention to proceed pro se on appeal and that he wanted another attorney. Am. Petition at 5-7. This argument, however, is belied by Hinshaw's December 29, 2006 filing in the appellate court in which he made explicit his intention to proceed pro se.*fn13 Hinshaw next argues that the Seventh Circuit failed to adequately inquire into his ability to represent himself pro se on appeal. He bases this argument on Farretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975), in which the Supreme Court ruled that a defendant must "knowingly and intelligently" waive his right to counsel at trial. Id. at 835 (citations omitted) (internal quotation marks omitted). This means that a defendant contemplating proceeding pro se at trial "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open." Id. The type of inquiry described in Farreta, however, is not required to determine whether the petitioner has knowingly and intelligently waived counsel on appeal. As the Seventh Circuit explained in Speights v. Frank,*fn14 [W]aiver of the right to the assistance of counsel at trial, the stage of criminal prosecution most difficult for the layperson to navigate, may require an oral inquiry to ensure that the defendant chooses with knowledge of his entitlements and his eyes open to the dangers of self-representation. The Supreme Court has never held that waivers of counsel at any stage of the proceedings other than trial require such a give-and-take between the accused and someone trying to educate him about counsel's benefits . . . .
When a state allows defendants to represent themselves on appeal . . . it may permit them to decide without the rigmarole that attends waiver of counsel for trial. Just as a simple consent to proceed without counsel suffices during custodial interrogation, so a straightforward assent is enough on appeal. 361 F. 3d 962, 964-65 (7th Cir. 2004) (citations omitted). Accordingly, the Seventh Circuit is merely required only to make sure a defendant's waiver of the right to counsel on appeal is "knowing and intelligent" through its written communication. See Oimen v. McNaughty, 130 F.3d 809, 812 (7th Cir. 1997) (affirming denial of § 2254 petition where petitioner was instructed that if he insisted on having his appointed appellate counsel withdraw, he might not get a second attorney, and where petitioner indicated that he would be willing to proceed pro se in that event). In this case, Hinshaw availed himself of his appointed counsel until less than two weeks before his opening brief was due, at which time he rejected the draft prepared on his behalf, refused to further discuss the case with his appointed counsel and caused them to file a motion to withdraw. In response to the Seventh Circuit's written inquiry asking him to advise the court as to whether he wanted to pursue his appeal without counsel, Hinshaw filed a motion requesting permission to proceed pro se. Under Speights and Oimen, these facts are sufficient to establish that Hinshaw's waiver of counsel on appeal was knowing and intelligent. Accordingly, Hinshaw's first ground for § 2255 relief is unavailing.
II. Ineffective Assistance of Counsel (Ground II)
Hinshaw's second ground for relief is premised on his contention that he received ineffective assistance of counsel prior to trial. 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, 60 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 performance 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. To establish prejudice prong, the petitioner must show "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)).
In this case, Hinshaw contends that he received ineffective assistance of counsel because his attorney failed to request dismissal of the indictment due to pretrial delay. Hinshaw's argument may be interpreted as arising under the provisions of the Speedy Trial Act, codified at 18 U.S.C. § 3161 et seq., or under the Sixth Amendment's right to a speedy trial.
A. Failure to Request Dismissal under the Speedy Trial Act
"In federal prosecutions, the Speedy Trial Act provides that a defendant's trial must commence within seventy days of the filing date of the information or indictment, or of the defendant's initial appearance, whichever comes later." United States v. Harris, 567 F.3d 846, 849 (7th Cir. 2009) (citing 18 U.S.C. § 3161(c)). Certain periods of time are excluded from this seventy day deadline under § 3161(h), which provides, in pertinent part,
(h) The following periods of delay shall be excluded in computing the time within which . . . the trial of any such offense must commence:
(3) (A) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness.
(B) For purposes of subparagraph (A) of this paragraph, a defendant or an essential witness shall be considered absent when his whereabouts are unknown and, in addition, he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence. For purposes of such subparagraph, a defendant or an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.
18 U.S.C. § 3161(h). If the government fails to comply with the Speedy Trial Act, the indictment shall be dismissed on the motion of the defendant. Id. § 3162(2). In determining whether to dismiss a case with or without prejudice the court shall consider (1) the seriousness of the offense; (2) the facts and circumstances of the case which led to the dismissal; and (3) the impact of a reprosecution on the administration of the Speedy Trial Act and on the administration of justice. Id. Hinshaw contends that a Speedy Trial Act violation occurred in his case because nearly twelve years elapsed from the date on which he was indicted, October 10, 1991, to the date on which his trial began, July 21, 2003. Hinshaw fails, however, to identify the specific periods not excluded -- either by order of court or by virtue of Hinshaw's own actions -- from the seventy day requirement. Nevertheless, the court's own review of the docket reveals no Speedy Trial Act violation.
1. The Time Elapsed from Hinshaw's Arraignment to Judge Nordberg's Issuance of a Bench Warrant for his Arrest
Hinshaw initially appeared at his arraignment on October 23, 1991, at which time the speedy trial clock began to run. See United States v. Montoya, 827 F.2d 143, 152 (7th Cir. 1987) ("The seventy-day period thus begins on the latter of two events: (1) the indictment or (2) the defendant's appearance before a judge of the court in which such charge is pending." (citations omitted) (internal quotation marks omitted)). Thereafter, Judge Nordberg entered a series of minute orders excluding time through the June 22, 1992, the date on which Hinshaw and his co-defendant were set to go to trial. See N.D. Ill. Crim. Dkt. Nos. 34, 72, 96, 104. Hinshaw absconded prior to trial, however, and a bench warrant was issued for his arrest on May 28, 1992. N.D. Ill. Crim. Dkt. No. 92. Thus, no days accrued on the speedy trial clock from Hinshaw's arraignment to the date on which the bench warrant was issued. Hinshaw has not demonstrated, nor argued, that the trial judge's exclusions of time were contrary to the Speedy Trial Act.
2. The Time Elapsed While Hinshaw was a Fugitive
The operative issue is whether Hinshaw's nearly ten years*fn15 as a fugitive are excludable under 18 U.S.C. § 3161(h)(3)(b). Hinshaw appears to argue that his whereabouts were not unknown within the meaning of that section given that he was in federal custody for at least part of that period. The record shows, however, that due to an error, the government did not associate "Ron Arthur Taylor," the alias which Hinshaw used in connection with the federal charges brought in Kansas, with "Charles Lee Hamilton," the alias Hinshaw had used in connection with the federal charges pending in this district. Absent any evidence that the government actually knew Hinshaw was in prison in Kansas, the court finds Hinshaw's assertion that his whereabouts were not unknown while he was a fugitive in this case unavailing.*fn16
Hinshaw also appears to argue that he was not avoiding apprehension or prosecution within the meaning of § 3161(h)(3)(B) because his co-defendant informed him that he was tried in absentia and acquitted. This argument is incredible. Hinshaw was not tried in absentia with his co-defendant; rather, their trials were severed and Judge Nordberg struck his previous order to that effect. See N.D. Ill. Crim. Dkt. No. 112. Had Hinshaw not fled prosecution, he would have had no cause to be mistaken as to whether he was tried and acquitted. At the very least, it is unbecoming for Hinshaw to attempt to use a situation he created as an excuse for his continued absence. Morever, Hinshaw's contention that he was not avoiding apprehension or prosecution in connection with the charges pending against him in this district is belied not only by his continued engagement in criminal activity, which resulted in his imprisonment on the charges brought in Kansas, but also by his persistent use of aliases, which delayed his prosecution. To the extent Hinshaw is also arguing that the period during which he was a fugitive was not excludable under § 3161(h)(3)(b) because the government did not exercise due diligence in locating him, the court need not consider this argument because it has determined that Hinshaw was attempting to avoid apprehension or prosecution in the Illinois case. The court therefore concludes that the period during which Hinshaw was a fugitive, from May 28, 1992, when the bench warrant was issued for his arrest, to April 8, 2002, the first time he appeared before this court after having been arrested in California on that warrant, is excludable under 18 U.S.C. § 3161(h)(3)(b).*fn17 Accordingly, the only period during which days on the speedy trial clock might have accrued occurred after Hinshaw was returned to Illinois.
3. The Time Elapsed from Hinshaw's Second Arraignment on the Original Indictment to Trial
After Hinshaw was arrested in California on the outstanding bench warrant, he was arraigned before this court on April 8, 2002, at which time it excluded time through and including June 17, 2002. N.D. Ill. Crim. Dkt. No. 132. Subsequently, the court excluded time through and including September 9, 2002, the date on which a status hearing was scheduled. See N.D. Ill. Crim. Dkt. Nos. 134, 135. On that day, however, neither party appeared and the court continued the status to September 18, 2002. N.D. Ill. Crim. Dkt. No. 139. Accordingly, the government admits that nine days accrued on the speedy trial clock. See Gov't's Resp. to § 2255 Petition at 9. At the next status, the court excluded time through the trial date, which was reset to November 18, 2002.*fn18 On November 5, 2002, however, the government filed the Superseding Indictment on which Hinshaw was scheduled to be arraigned on November 13, 2002. On that date, the arraignment was reset to November 26, 2002 and time was excluded through that date. N.D. Ill. Crim. Dkt. No. 146. Time was thereafter excluded for the rest of the days before which Hinshaw ultimately went to trial, on July 21, 2003. See N.D. Ill. Crim. Dkt. Nos. 147, 154, 156, 159, 161, 163.
Because only nine days appear to have elapsed under the Speedy Trial Act, no violation occurred. Accordingly, Hinshaw cannot show that his attorney's performance was defective for failing to request dismissal on that basis. To the extent Hinshaw's petition is premised on this basis, it must be denied.
B. Hinshaw's Attorney's Failure to Raise a Sixth Amendment Speedy Trial Claim
Hinshaw's second ineffective assistance argument, is premised on his attorney's failure to move for dismissal pursuant to the sixth amendment's guarantee of a speedy trial. At the outset, the court is mindful that "although no provision of the Speedy Trial Act is intended to bar any sixth amendment speedy trial claim, it will be an unusual case in which the time limits of the Speedy Trial Act have been met but the sixth amendment right to speedy trial has been violated." See United States v. Nance, 666 F.2d 353, 360 (9th Cir. 1982) (citations omitted) (internal quotation marks omitted).
The Sixth Amendment ensures all criminal defendants the right to a speedy and public trial. U.S. Const. amend. VI. This constitutional right, however, "is a more vague concept than other procedural rights." Barker v. Wingo, 407 U.S. 514, 521, 530, 92 S.Ct. 2182, 33 L.Ed. 2d 101 (1972). Although it is "impossible to determine with precision when the right [to a speedy trial] has been denied," id. at 521, the appropriate analysis is "a balancing test, in which the conduct of both the prosecution and the defendant are weighed." Id. at 530. Four factors the court should consider are (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Id. The length of the delay is a triggering mechanism that provokes further inquiry into the other factors. Id. "[B]arring extraordinary circumstances," a court will be reluctant to rule that a defendant was denied his constitutional right to a speedy trial "on a record that strongly indicates . . . that the defendant did not want a speedy trial." Id. at 536. The nearly twelve-year delay between Hinshaw's original indictment and conviction is extraordinary and sufficient to trigger further inquiry into the remaining Baker factors. See United States v. Oriedo, 498 F.3d 593, 597 (7th Cir. 2007) ("We have considered delays that approach one year presumptively prejudicial."). An analysis of the remaining factors reveals, however, that Hinshaw's sixth amendment right was not violated.
1. The Reason for the Delay
The second Barker factor involves a determination of the party most at fault for the delay and is of such importance that the Supreme Court has referred to it as "the flag all litigants seek to capture." See Williams v. Bartow, 481 F.3d 492, 506 (7th Cir. 2007) (quoting United States v. Loud Hawk, 474 U.S. 302, 615, 106 S.Ct. 648, 88 L.Ed. 2d 640 (1986)). Hinshaw contends that the second Barker factor should not weigh against him because the delay in prosecuting him is attributable to the government's negligence in pursuing him, particularly its failure to discover him while he was in federal custody in California, rather than his own conduct. At the outset, the court notes that Hinshaw's argument fails to address the period of delay from May 1992, when Hinshaw fled prosecution in this court, to October 1997, when Hinshaw was remanded to federal custody on unrelated charges in Kansas. See D.C. Kan. Crim. Dkt. No. 23. Hinshaw's dubious contention that he was not actively avoiding prosecution during this period because he believed that he had been tried in absentia and acquitted is belied by his decision to flee Illinois, his continued engagement in criminal conduct in Kansas, and his persistent use of a myriad of aliases. Accordingly, the court must attribute the delay of nearly five and a half years to Hinshaw's own conduct.
In support of his argument that the government is at fault for the delay beginning when he was remanded into federal custody on underlying charges, Hinshaw relies on the Supreme Court's decision in Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed. 2d 520 (1992). There, the Supreme Court ruled that an eight and a half year delay between the defendant's indictment and arrest violated his right to a speedy trial because the government was negligent in pursuing him during that period. Hinshaw's reliance on Doggett, however, is unavailing because Hinshaw's conduct materially differs from that of Doggett. Doggett was indicted in a drug conspiracy in 1980. Id. at 648. When police offers attempted to arrest him, they discovered he had left the country prior to learning of the charges against him. Id. at 649-50. The government undertook certain measures to apprehend him upon his return to the United States, but those measures eventually lapsed. Id. Doggett returned to the United States undetected in 1982. Id. Although he lived openly under his own name from that time, the government did not discover Doggett until 1988, when it ran a mass credit check on individuals with outstanding warrants. Id. Doggett challenged the denial ...