The opinion of the court was delivered by: Murphy, District Judge
On May 4, 2009, Petitioner Douglas E. Farmer (Mr. Farmer) filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 3) pursuant to 28 U.S.C. § 2255. Mr. Farmer then filed a supplement to the motion (Doc. 6) on July 15, 2009. After receiving an extension of time, the Government responded to the motion and the supplement on March 1, 2010 (Doc. 10), and Mr. Farmer filed a reply on April 21, 2010 (Doc. 13). Mr. Farmer's motion is based on a claim of ineffective assistance of counsel before and during trial, at sentencing, and on direct appeal. For the reasons set forth below, Mr. Farmer's motion is denied.
On November 18, 2004, a grand jury indictment was returned against Mr. Farmer. Mr. Farmer, along with thirteen others, was charged with conspiracy to distribute or possess, with intent to distribute, 5 kilograms or more of cocaine and cocaine base, and 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 18 U.S.C. § 2 (Criminal Case No. 30139-01-GPM, Count I). On March 15, 2007, after a seven-day trial, the jury returned a verdict against Mr. Farmer. The jury also found by special verdict that the amount of cocaine involved in the conspiracy was at least 5 kilograms. The Presentence Investigation Report (PSR), dated June 25, 2007, included a four-point adjustment for Mr. Farmer's leadership role pursuant to U.S.S.G. § 3B1.1(a), and a two-point adjustment for weapons possessed during the offense pursuant to U.S.S.G. § 2D1.1(b)(1), for a total offense level of 43.*fn1 Mr. Farmer, through his attorney, lodged objections to the PSR. The Court adopted the PSR without change, and Mr. Farmer was sentenced on June 25, 2007, to 240 months imprisonment, five years supervised release, a fine of $1,250, and a special assessment of $100-the mandatory minimum sentence and well below the advisory guideline range of life. A notice of appeal was filed on behalf of Mr. Farmer the same day. On appeal, the Seventh Circuit held that the district court did not improperly deny Mr. Farmer's motion under the Speedy Trial Act. United States v. Farmer, 543 F.3d 363, 368-69 (7th Cir. 2008).
Mr. Farmer now seeks relief under § 2255. In his Motion to Vacate, Set Aside, or Correct Sentence, Mr. Farmer claims he received ineffective assistance of counsel because: (1) counsel failed to argue for a buyer-seller instruction; (2) counsel failed to raise on appeal the motion to suppress wiretaps that was denied by the district court; (3) counsel failed to challenge the expert witness testimony on direct appeal; (4) counsel failed to challenge the relevant conduct attributed to Mr. Farmer; (5) counsel failed to ensure that the jury was properly instructed; (6) counsel failed to raise certain objections to the PSR at sentencing or on direct appeal; (7) counsel did not understand the Supreme Court's holding in United States v. Booker, 543 U.S. 220 (2005); (8) counsel failed to challenge the Government's lack of proof that Mr. Farmer was involved in a conspiracy; (9) counsel failed to challenge certain aspects of Mr. Farmer's sentence on direct appeal; and (10) counsel failed to raise a variety of other issues on direct appeal. Mr. Farmer filed a supplement to the motion with additional arguments regarding the validity of his sentence, and he also raised new arguments in his reply to the Government's response.
An evidentiary hearing on a motion brought pursuant to 28 U.S.C. § 2255 is not required 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); see also Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001); Daniels v. United States, 54 F.3d 290, 293 (7th Cir. 1995); United States v. Taglia, 922 F.2d 413, 419 (7th Cir. 1991) ("[I]f there is no reason to suppose that a hearing would produce evidence justifying the grant of a new trial, there is no reason to hold a hearing."). Additionally, the Seventh Circuit has noted that "[n]o hearing is required in a section 2255 proceeding if the motion raises no cognizable claim, if the allegations in the motion are unreasonably vague, conclusory, or incredible, or if the factual matters raised by the motion may be resolved on the record before the district court." Oliver v. United States, 961 F.2d 1339, 1343 n.5 (7th Cir. 1992), citing United States v. Frye, 738 F.2d 196 (7th Cir. 1984).
Mr. Farmer in his § 2255 motion requests an evidentiary hearing. After careful review of the motion, the papers, and the entire record, the Court concludes that any factual matters raised by the motion may be resolved on the record and thus, an evidentiary hearing is not required in this case. Accordingly, the Court will now resolve the motion without a hearing.
2. Motion to Vacate, Set Aside or Correct Sentence
The Court must grant a § 2255 motion when a prisoner's "sentence was imposed in violation of the Constitution or laws of the United States," the Court lacked jurisdiction, the sentence exceeded the maximum authorized by law, or the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). Mr. Farmer is entitled to bring a claim of ineffective assistance of counsel before this district court even though he did not previously raise the issue on direct appeal. See Massaro v. United States, 538 U.S. 500, 505 (2003). Indeed, "the § 2255 motion often will be ruled upon by the same district judge who presided at trial. The judge, having observed the earlier trial, should have an advantageous perspective for determining the effectiveness of counsel's conduct and whether any deficiencies were prejudicial." Id. at 506. Here, Mr. Farmer's claims fall under § 2255 because, he alleges, the ineffective assistance of his counsel resulted in a "sentence [being] imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a).
3. Ineffective Assistance of Counsel under Strickland
In Strickland v. Washington, the Supreme Courtrecognized that the "right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary . . . " 466 U.S. 668, 685 (1984). Moreover, a defendant's "right to counsel is the right to the effective assistance of counsel." Id. (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)) (emphasis added). To establish ineffective assistance of counsel, Mr. Farmer bears a heavy burden. For such claims, the burden falls squarely on the defendant to show
(1) counsel's performance was deficient and fell below an objective standard of reasonableness, and
(2) such deficient representation prejudiced the defendant. Strickland, 466 U.S. at 687-88.
With respect to the first prong, the Strickland Court declined to adopt specific guidelines for what constitutes reasonable representation by an attorney. Id. at 688. Instead, the Court stated that "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. The Court did, however, discuss a criminal defense attorney's basic obligations which include, but are not limited to, the duty of loyalty, duty to avoid conflicts of interest, advocate for and consult with the defendant, duty to keep the defendant informed, and the duty to apply her skill and knowledge. Id.
In reviewing a claim of ineffective assistance of counsel, a court is "highly deferential" to the attorney, "with the underlying assumption that 'counsel's conduct falls within the wide range of reasonable professional assistance.'" United States v. Holman, 314 F.3d 837, 840 (7th Cir. 2002), quoting Strickland, 466 U.S. at 689. The defendant must overcome the presumption that defense counsel "rendered adequate assistance and . . . made significant decisions in the exercise of his or her reasonable professional judgment." Cooper v. United States, 378 F.3d 638, 641 (7th Cir. 2004), quoting United States v. Traeger, 289 F.3d 461, 470 (7th Cir. 2002).
As for the second prong of Strickland, the attorney's deficient representation must have an adverse effect to constitute prejudice. 466 U.S. at 691. "Even if a defendant shows that particular errors of counsel were unreasonable . . . the defendant must show that they actually had an adverse effect on the defense. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693 (emphasis added). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Mr. Farmer appears to base the majority of his ineffective assistance arguments on his incorrect calculation of the United States Sentencing Guidelines (Guidelines) range and counsel's alleged failure to provide him and the court with briefs explaining why counsel did not pursue every possible argument on appeal. However, Mr. Farmer was sentenced far below the advisory Guidelines range, and he has misstated the law with regard to counsel's obligations on appeal. These factors inherently lessens the force of Mr. Farmer's ineffective assistance claims. Cf. Welch v. United States, 604 F.3d 408, 412 n. 5 (7th Cir. 2010) (collecting cases).
B. Mr. Farmer's Claim of Ineffective Assistance
1. Counsel's Failure to Argue a Buyer-Seller Instruction
Mr. Farmer first argues that "the court record fails to evidence any testimony, facts or evidence" to establish anything beyond a buyer-seller relationship and thus, counsel's failure to argue this represented an omission that "may well have changed the outcome" of the jury's decision (Doc. 3, p. 9).
Mr. Farmer's claim fails to establish actual prejudice required by Strickland, as the argument for a buyer-seller relationship is against the weight of the evidence. The record demonstrates that the testimony of those indicted in the conspiracy expressly implicated Mr. Farmer. For example, the testimony of co-defendant Charles Howliet alone could have been sufficient evidence for the jury to find that a conspiracy existed, instead of a mere buyer-seller relationship:
Q: After you were contacted by Douglas Farmer, did you agree to do work together?
Q: What did you do for him?
Q: And did you work with anyone besides Douglas Farmer at that time?
Q: And do you know Jerel's last name?
Q: And is Jerel charged with you in this case?
Q: Charles, what kind of work did the three of you do?
Q: And how did you go about getting this crack, did somebody make it, did you buy ...