The opinion of the court was delivered by: Reagan, District Judge
I. Introduction and Background
Before the Court is Patrick Duncan's October 2009 petition to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Analysis of the petition begins with an overview of the procedural history of the underlying criminal case, United States v. Duncan (Case No. 05-cr-30025-MJR).
On September 2, 2005, Duncan pleaded "straight up" to a three-count superseding indictment which charged him with conspiracy to transport counterfeit checks (Count 1); conspiracy to commit wire fraud (Count 2 ); and violation of the National Stolen Property Act (Count 3). Count 4, a forfeiture count, was dismissed by the Government. The charges pertained to an identity theft and check kiting scam. Duncan, who is a repeat offender, produced bogus checks which were cashed by several individuals who were prosecuted in separately docketed cases and who subsequently became cooperating Government witnesses. Duncan was represented in this action by retained counsel of his choosing, Clinton A. Wright.
The undersigned Judge sentenced Duncan to 96 months' imprisonment, 3 years' supervised release, a special assessment of $300.00, and restitution of $177,726.92. Judgment was entered accordingly on March 1, 2006. Duncan appealed the restitution portion of his sentence to the Seventh Circuit Court of Appeals, and the appeals court affirmed the judgment of the district court. See United States v. Duncan, Case No. 06-1614 (7th Cir., April 9, 2008). Duncan sought, but was denied, a writ of certiorari to the United States Supreme Court.
In October 2009, Duncan timely moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion survived threshold review in April 2010, and the Court set a briefing schedule. The motion became ripe with the filing of Duncan's reply brief on June 28, 2010. For the reasons stated below, the Court denies Duncan's request for relief and dismisses his § 2255 petition.
An evidentiary hearing is not warranted. Five of the six claims asserted by Duncan involve ineffective assistance of counsel. Such claims often require an evidentiary hearing, "because they frequently allege facts that the record does not fully disclose." Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008). But the issues raised here can be resolved on the existing record, which conclusively demonstrates that Duncan 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.), cert. denied, 551 U.S. 1132 (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). Stated another way, Duncan has not alleged facts that, if proven, would entitle him to relief. See Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
II. Analysis of § 2255 Petition
A. Applicable Legal Standards
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,... 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"). Section 2255 has been described as "the federal-prisoner substitute for habeas corpus." United States v. Boyd, 591 F.3d 953, 955 (7th Cir. 2010). Accord Washington v. Smith, 564 F.3d 1350, 1351 (7th Cir. 2009)(referring to a § 2255 petition as "the federal prisoner's equivalent to a § 2254 petition attacking a criminal judgment entered by a state court").
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). 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"). And § 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). AccordSandoval, 574 F.3d at 850 ("claims cannot be raised for the first time in a § 2255 motion if they could have been raised at trial or on direct appeal").
In the case at bar, Duncan tenders six grounds for § 2255 relief, five of which are premised on ineffective assistance of counsel:
(1) his lawyer failed to insist upon proof of an overt act as required to prove a wire fraud conspiracy under 18 U.S.C. § 1349;
(2) his lawyer failed to require the Government to describe the particular checks that were actually transported in interstate commerce;
(3) his lawyer failed to advise him of a plea offer from the Government which caused the Government to rescind an offer to recommend an 84-month sentence;
(4) his right to due process was violated where he was not the most culpable member of the conspiracy and the prosecution should have used him to cooperate against the more culpable member, Calien McPike, instead of using McPike against him;
(5) his lawyer failed to assist him in representing his interest in his personal property which was not purchased with proceeds from any violation of federal law; and
(6) his lawyer was ineffective in failing to reach an agreement with the prosecution regarding the amount of restitution to be ordered.
The Sixth Amendment to the United States Constitution accords criminal defendants the right to effective assistance of counsel. Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009), cert. denied, 130 S.Ct. 1925 (March 22, 2010) (citing Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). To prevail on a claim of ineffective assistance, a defendant must prove two things (a) that his attorney's performance was objectively unreasonable and (b) that he (the defendant/petitioner) suffered prejudiced as a result of this constitutionally deficient performance. Wyatt, 574 F.3d at 457-58; United States v. Peleti, 576 F.3d 377, 383 (7th Cir. 2009); Strickland v. Washington, 466 U.S. 668, 687 (1984).
This first requirement of this dual test is referred to as "the performance prong" and the second as the "prejudice prong."As to the performance prong, a § 2255 petitioner must overcome a "strong presumption that [his] counsel's conduct falls within the wide range of reasonable professional assistance." Wyatt, 574 F.3d at 458 (quoting Strickland, 466 U.S. at 687-88. He must establish the specific acts or omissions he claims constitute ineffective assistance, and the Court then assesses whether those acts/omissions are outside the scope of reasonable legal assistance. Id. See also United States v. Acox, 595 F.3d 729, 734 (7th Cir. 2010) (citing Williams v. Lemmon, 557 F.3d 534 (7th Cir. 2009)(Deciding "whether counsel's services were beneath the constitutional floor requires consideration of what counsel did, as well as what he omitted.").
Evaluation of counsel's performance is highly deferential. The reviewing court presumes reasonable judgment by counsel and must not second-guess counsel's strategic choices or "tactical decisions." Valenzuela v. United States, 261 F.3d 694, 699 (7th Cir. 2003). Moreover, the court must "consider the reasonableness of counsel's conduct in the context of the case as a whole, viewed at the time of the conduct,... [applying] a strong presumption that any decisions by counsel fall within a wide range of reasonable trial strategies." Id.
As to the prejudice prong, the defendant/petitioner must demonstrate a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. United States v. McKee, 598 F.3d 374, 384 (7th Cir. 2010). The inquiry focuses on whether the counsel's errors rendered the proceedings "fundamentally unfair or unreliable." Valenzuela, 261 F.3d at 699. As explained below, all five of Duncan's ineffective assistance claims fail the Strickland test.
B. Ineffective assistance of counsel - Count 2, Conspiracy to Commit Wire Fraud
Duncan claims that Attorney Wright was ineffective in failing to advise him of the elements of conspiracy to commit wire fraud and that he should have been told that 18 U.S.C. § 1349 requires proof of an overt act.*fn1 In Duncan's reply brief, he concedes that no overt act was needed to convict him of violation § 1349. However, according to Duncan, the "overt act" claim was not the only claim he raised regarding Count 2. Duncan claims that his lawyer should have objected to the Government's use of "reasonably foreseeable" as the standard for wire fraud because he was charged with wire fraud conspiracy, not "actual wire fraud." He also claims that the Government failed to make any claim that (1) the conspiracy to commit wire fraud as charged in the indictment existed and (2) he knowingly became a member of the conspiracy with the intention to further the conspiracy.
Duncan's arguments fail for a number of reasons, not the least of which is that "reasonably foreseeable" is an element of both wire fraud and conspiracy to commit wire fraud. See, e.g., United States v. Soteras, 770 F.2d 641, 645 (7th Cir. 1985) ("In order to prove conspiracy to commit the offense of wire fraud, the government must establish that a defendant agreed to participate in a scheme to defraud in which it was reasonably foreseeable that an interstate wire facility would be used in furtherance of the scheme." (citations omitted);United States v. Ratliff-White 493 F.3d 812, 817 (7th Cir. 2007) (The third element of wire fraud is causing "a wire transmission by acting with the knowledge that use of the wires will occur in the ordinary course of business or where use of the wires can be reasonably foreseen.") (citation omitted).
Second, Duncan's assertion that the Government failed to claim the elements of conspiracy to commit wire fraud is belied by the entire record of this case, from indictment to the sentencing hearing. The scheme by which Duncan, through his criminal associates, defrauded multiple businesses by means of counterfeit checks linked to bogus identification documents is carefully and extensively set forth in the indictment. At the change of plea hearing, Duncan's factual stipulation (Doc. 4-5), which details the conspiracy and his role in it, was read into the record. Prior to its reading, the Court conducted the following colloquy:
Q: He (AUSA Bruce Reppert) referenced the factual stipulation. I have in my hand a two page document, nine paragraphs in it. Can you confirm your signature is on page two of the document?
Q: Now paragraph six is stricken out and you have ...