The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Before the court is Randy Griffin's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255; and the Government's motion to strike Griffin's "supplemental affirmation." For the following reasons, the Government's motion is GRANTED and Griffin's motion is DENIED. The court declines to issue Griffin a certificate of appealability.
Randy Griffin and his co-defendants robbed a string of currency exchanges and other businesses in the greater Chicago area. After a jury trial at which two of the conspiracy's leaders testified, Griffin was convicted of two counts of robbery and one count of conspiracy to commit robbery in violation of 18 U.S.C. §§ 1951; and two counts of using, carrying, and brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A). On August 29, 2005, this court sentenced Griffin to 524 months' imprisonment and three years of supervised release.
On direct appeal, Griffin and his co-defendant Lomax argued that (1) the robberies did not have an impact on interstate commerce sufficient to support a conviction under the Hobbs Act, 18 U.S.C. § 1951(a); (2) an impermissible variance existed between the conspiracy charged in the indictment and that proved at trial; (3) this court erred by declining to give the multiple- conspiracy instruction they had proposed; and (4) mandatory minimum sentences imposed for brandishing a firearm are unconstitutional because they are based on facts found only by a judge at sentencing. The Seventh Circuit found no merit in any of these arguments and affirmed Griffin and Lomax's convictions. See United States v. Griffin, 493 F.3d 856 (7th Cir. 2007).
Griffin, however, also challenged his sentence on the grounds that this court improperly applied a presumption that a sentence within the range recommended by the United States Sentencing Guidelines is reasonable. In his sentencing memorandum, Griffin acknowledged that the statutory minimum sentence for the two counts of conviction under § 924(c)(1)(A) was 384 months, which had to run consecutively to the sentences imposed for any other counts. See 18 U.S.C. § 924(c)(1)(D)(ii). With respect to Griffin's remaining convictions, the Guidelines provided for a range of 140 to 175 months. Accordingly, this court calculated the total Guidelines range as 524 to 559 months. Griffin asked for the statutory minimum of 384 months; this court imposed the Guidelines minimum of 524 months. In doing so, the court stated that "the burden's on the defendant to overcome the rebuttable presumption that a guideline sentence is appropriate. I'm not in a position to find on this record that the presumption of reasonableness has been overcome."
After Griffin was sentenced, the Seventh Circuit held that the presumption that a sentence within a properly calculated Guidelines range is reasonable is an appellate presumption only; a district court judge "is not required-or indeed permitted-to 'presume' that a sentence within the guidelines range is the correct sentence." United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir. 2006). Shortly thereafter, the Supreme Court also held that the presumption of reasonableness is "an appellate court presumption" that "applies only on appellate review." Rita v. United States, 551 U.S. 338 (2007). In light of Demaree and Rita, then, the Seventh Circuit vacated Griffin's sentence and remanded for resentencing. Recognizing that the Guidelines minimum was a "stiff sentence," this court resentenced Griffin, on December 5, 2007, to 408 months' imprisonment-a 116 month reduction.
Griffin did not appeal. On December 4, 2008, he filed the present § 2255 motion alleging that his attorney at trial and sentencing, Standish E. Willis, ignored his request to file a notice of appeal from the new judgment. Because Griffin included a sworn affidavit to the same effect, the court conducted an evidentiary hearing on this issue on September 2, 2009.
At the hearing, Griffin testified that on two occasions, Willis told him that he would file an appeal. On November 5, 2007, Griffin and Willis spoke briefly in the lockup at this court. Griffin testified that Willis told him "that he was going to file an appeal on my behalf, and that he was going to attack the identification of the lineup." (Tr. 8.) And just prior to Griffin's resentencing hearing on December 5, 2007, again in this court's lockup, Willis purportedly said to Griffin that Griffin "was goin' be resentenced, and after that [Willis] was going to file an appeal . . . [Willis] told [Griffin] he had the brief prepared." (Id. 9.) Griffin further testified, "I told him I wanted to file an appeal." (Id. 10.)
Griffin's mother and sister testified that immediately after the resentencing hearing, Willis told them that he was going to file an appeal. (Id. 20-21, 24-25.)
Willis testified that he never told Griffin he would file an appeal. Willis spoke to Griffin immediately after the resentencing on December 5, 2007, "either down here in the lockup or on the 24th floor." (Id. 27.) Willis testified that he and Griffin were both pleased with the result of the resentencing. (Id.) Willis explained to Griffin that he thought an appeal would put the substantial reduction in his sentence at risk, as the Seventh Circuit had recently reversed and remanded where the district judge had sentenced one of his clients significantly below the Guidelines minimum. (Id. 27-28.) Furthermore, Willis told Griffin that there were "no issues that [Willis] considered Supreme Court issues," and Griffin agreed that a certiorari petition was not a viable option. (Id. 28.) At the end of the conversation, Griffin "said something to the effect of, you know, I trust your judgment on this. You know, if you could look at it and review it, or something like that. I said, you know, I'm not going to file it, but I'll review it for you. And then I'll just take the appropriate steps if that's what you want me to do. And that was it." (Id. 29.) Willis never asked Griffin to sign a waiver of appeal. (Id. 30.)
Willis did not recall any conversation about a possible appeal with Griffin's mother or sister. Willis testified that it was against his practice to talk about clients' plans because he considered such matters "privileged." (Id. 30.)
Federal prisoners may challenge their detention if their conviction or sentence is based on an error that is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal citation and quotation marks omitted); see 28 U.S.C. § 2255. If the court determines that such a defect exists in the judgment or sentence, it "shall vacate and set the judgment aside and shall discharge ...