The opinion of the court was delivered by: Judge Joan H. Lefkow
Saul Leyva, who is currently incarcerated at the Moshannon Valley Correctional Center in Philipsburg, Pennsylvania, has filed a pro se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He asserts two main grounds for relief: (1) he received ineffective assistance of counsel because his attorneys (a) failed to negotiate a plea agreement; (b) failed to advise him to plead guilty and explain general litigation strategy; and (c) failed to highlight his medical condition, the harsh conditions of his confinement, and the sentences of his co-defendants at sentencing; and (2) his sentence is procedurally and substantively unreasonable. For the reasons stated below, Leyva's petition is denied.
On February 16, 2007, Leyva was arrested along with two others, Jose Payan and Bogar Santana, for participating in a drug deal. On November 6, 2007, a federal grand jury issued a three-count superseding indictment against Leyva, charging him with conspiracy to possess with intent to distribute quantities of marijuana, in excess of 50 grams of methamphetamine, and in excess of 100 grams of heroin in violation of 21 U.S.C. § 846 (count I), using a telephone in furtherance of a drug trafficking conspiracy in violation of 21 U.S.C. § 843(b) (count II), and possession with intent to distribute in excess of 50 grams of methamphetamine and in excess of 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1) (count III).
Leyva proceeded to a trial on March 24, 2008. On March 26, 2008, he was convicted of all three counts. The jury made a special finding that the amount of heroin involved in his conspiracy was more than 100 grams, that the amount of methamphetamine was more than 50 grams, and that the amount of marijuana was less than 100 kilograms. The jury further found that with respect to count III, the amount of controlled substances involved was more than 50 grams of methamphetamine and more than 100 grams of heroin. On July 11, 2008, Leyva was sentenced to 72 months in prison.
Leyva's co-defendant Payan, who accepted responsibility and pleaded guilty, received a 66-month sentence. His other co-defendant, Santana, who by pleading guilty accepted responsibility and qualified for safety-valve and minor role reductions, received a 36-month sentence.
On April 1, 2009, Leyva filed this timely motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Relief under 28 U.S.C. § 2255 "is reserved for extraordinary circumstances." United States v. Hays, 397 F.3d 564, 566 (7th Cir. 2005) (citations omitted) (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 omitted) (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 show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001) (an evidentiary hearing is not required where a petitioner's allegations are "vague, conclusory, or palpably incredible rather than detailed and specific.").
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, 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 the circumstances, counsel's performance was outside the range of professionally competent assistance. Id. To establish under the prejudice prong the reasonable probability that the outcome would have been different, 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)).
A. Failure to Negotiate a Plea Agreement
Leyva first argues that his attorneys were ineffective because, despite his willingness to accept a plea agreement, they failed to engage in plea negotiations with the government. Leyva specifically alleges that when he learned of his co-defendants intentions to plead guilty, he asked his attorneys to negotiate a plea agreement on his behalf. He claims that instead of trying to negotiate a plea agreement, his attorneys advised him that they would file motions to exclude the testimony of his ...