The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
This matter is before the Court on Petitioner Tim Bailey's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence and Memorandum in support. (Docs. 1 & 2). Respondent has responded to the Motion as directed by the Court. (Docs. 6 & 7). Bailey has also filed a Reply to the Response. (Doc. 15). For the reasons stated below, the Court finds that an evidentiary hearing is unnecessary and denies Bailey's Motion.
Bailey has requested an evidentiary hearing on his claim of ineffective assistance of counsel. (Doc. 8). He is entitled to an evidentiary hearing only if he has alleged facts that, if proven, would entitle him to relief, which, as discussed below, he has not done. Sandoval v. U.S., 574 F.3d 847, 850 (7th Cir. 2009). As the factual issues relevant to Bailey's claims in this action can be resolved on the record, an evidentiary hearing is not required. Oliver v. United States, 961 F.2d 1339, 1343 (7th Cir. 1992).
On February 9, 2006, following a jury trial, Bailey was convicted in this Court of conspiracy to distribute crack cocaine and distribution of more than 50 grams of cocaine base; he was sentenced to 240 months' incarceration. (02-cr-10144). Bailey challenged this conviction on direct appeal, raising the issues of this Court's refusal to compel the production of tax records of a government informant, the admission of testimony regarding his own arrest for trespassing, and the admission of testimony regarding his presence at certain drug sales. Bailey's conviction was affirmed by the Court of Appeals. U.S. v. Bailey, 510 F.3d 726 (7th Cir. 2006).
Bailey contends in his § 2255 Motion that his trial counsel, Spencer Daniels, provided ineffective assistance. He identifies four areas in which he alleges that Daniels' representation was constitutionally deficient: (1) his failure to effectively cross-examine government witnesses, (2) his failure to call witnesses and investigate the case in support of Bailey's defense, (3) failure to object to improper cross-examination by the prosecution, and (4) his conflict of interest regarding a government witness.
Criminal defendants are guaranteed by the Sixth Amendment the right to representation by a competent attorney. In order to substantiate a claim of unconstitutionally ineffective assistance of counsel, a petitioner must show (1) that his trial counsel's representation was so poor as to fall below a threshold of objective reasonableness and (2) that, but for his counsel's failure, the result of his criminal proceedings would have probably been different. Strickland v. Washington, 466 U.S. 668 (1984).
The first prong of Strickland's test is to be applied under the "strong presumption" that counsel's performance was constitutionally adequate.*fn1 Id. at 689-90 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)) ("Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."). The Court takes each of Daniels' alleged errors in turn.*fn2
I. Cross-Examination of Witnesses
Bailey argues that Daniels improperly failed to attempt impeachment of the testimony of witness Williams, who testified for the government as a term of a plea agreement. (Doc. 2 at 7-8). Bailey specifically cites to Federal Rule of Evidence 608, which allows impeachment by evidence in the form of opinion or reputation, or by cross-examination into specific instances of conduct relevant to the witness' character for truthfulness. He also claims that Daniels "totally abandon[ed] his line of questioning" in cross examining Williams. (Doc. 2 at 8).
As pointed out by Respondent, Daniels did conduct cross-examination of Williams that was directed toward undermining his credibility, by eliciting testimony that he was himself involved in the drug trade and that he used marijuana. (Tr. 281-83). In addition, the testimony elicited and highlighted by Daniels showed that Williams did not have a crystal-clear memory of the events to which he had testified. (Tr. 281-83). Finally, Daniels cross-examined Williams on the fact that he was testifying in compliance with his plea agreement, in exchange for a lower sentence recommendation and Rule 35 motion by the government. (Tr. 283-86). Daniels' cross-examination was obviously directed toward undermining Williams' credibility, and was not "abandoned." Bailey has failed to state what other cross-examination he would have liked for Daniels to undertake, such as the nature of other specific instances of conduct relevant to Williams' credibility. There was no error in Daniels' cross-examination of Williams.
In addition, Bailey generally asserts that Daniels erred in "conducting inadequate cross-examination of key witness' [sic] who testified had several discrepancies regarding chain of custody of cocaine allegedly purchase[d] by petitioner," and that he failed "to elicit testimony from prosecution witnesses." (Doc. 2 at 9). Bailey does not identify these witnesses or the discrepancies alleged. As pointed out by Respondent, thirteen of the government's witnesses gave testimony relating to Bailey, and Daniels cross-examined each of them. A § 2255 petitioner alleging ineffective assistance of counsel must identify the errors that he claims - the Court cannot scour the record on his behalf, searching for any potential errors. As Bailey has failed to identify these alleged "discrepancies" that Daniels did not address, he has failed to properly allege either error or prejudice.
The record shows that Bailey has failed to establish that Daniels' actions in cross-examining Williams was constitutionally deficient, and has failed to allege facts that, if proved, would show that his cross-examination of ...