The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Darryl Williams ("Williams") was convicted of three counts of accepting bribes in violation of 18 U.S.C. § 666(a)(1)(B), and was then sentenced by this Court. Williams now moves, pursuant to 28 U.S.C. § 2255 ("§ 2255"), to vacate, set aside, or correct his sentence. For the following reasons, the Court denies Williams' Motion. William's Motion to Strike the affidavit of Nathan Diamond-Falk and the portions of the Government's Response that rely upon that affidavit is also denied.
As Williams is proceeding pro se, the Court construes his filings broadly. See, e.g., Kafo v. United States, 467 F.3d 1063, 1066 (7th Cir. 2006). The following factual background, although not presented in Williams' Motion, is drawn from the records of the underlying criminal proceedings.
On May 10, 2007, Williams was indicted by a grand jury sitting in the Northern District of Illinois on three counts of accepting bribes in connection with the business of a state government agency, in violation of 18 U.S.C. § 666(a)(1)(B). See United States v. Williams, 07 CR 73, at R. 14. According to the indictment, Williams, an Electrical Inspector for the City of Chicago Department of Construction and Permits ("the Department"), had accepted cash payments totaling $22,500 in exchange for his unlawful approval of zoning changes for two individual properties, as well as for issuing a building permit for a third property. See id. at R. 14.
Nathan Diamond-Falk ("Diamond-Falk") first appeared on Williams' behalf on March 26, 2007 and represented him through his arraignment, trial, and sentencing proceedings. Williams was arraigned on June 14, 2007, and pled not guilty to all counts of the indictment. Id. at R. 20. A jury trial then began on January 22, 2008; the jury found Williams guilty on all three counts on January 25, 2008. Id. at R. 47; 52.
Following the jury's verdict, the Probation Officer prepared its Presentence Investigation Report ("PSR"). Diamond-Falk then filed a factual objection to the PSR, arguing that the base level assigned under the Federal Sentencing Guidelines should be 11, rather than 14, because the payments that Williams had accepted were not "bribes" under Guideline Section 2C1.1, but rather "gratuities" under Guideline Section 2C1.2(a). See id. at R. 58. Additionally, in his pre-sentencing filings and at the sentencing hearing, Diamond-Falk requested a downward departure from the Guidelines calculation pursuant to 18 U.S.C. § 3553(a), presenting as evidence nineteen character letters written on Williams' behalf regarding his good character and positive role in the community. He also pointed to two proffer sessions that Williams had held with the Government regarding his offenses as evidence of his potential for rehabilitation.
The Government argued in response that the evidence at trial had shown that Williams had accepted bribes within the meaning of Section 2C1.1, and not gratuities. See id. at R. 59. The Government sought a sentence within a Guidelines range of 33 to 41 months, calculated on the basis of an application of Section 2C1.1, an adjusted offense level of 20 as set forth in the PSR, and a criminal history category of 1. The Government argued that a sentence within the Guidelines range was merited under the facts and circumstances of the case and would be essential to deter other city officials who would be tempted to accept bribes.
The Court ultimately sentenced Williams to thirty-six months imprisonment, three years of supervised release, and 200 hours of community service. See id. at R. 64. Granting Diamond-Falk's request that Williams be allowed 120 days to surrender, the Court ordered that Williams surrender to the Bureau of Prisons on January 5, 2009. See id.
On September 2, 2009, Diamond-Falk timely filed a notice of appeal of the sentence imposed by this Court. Id. at R. 62. However, the appeal was dismissed on December 17, 2008 by the Seventh Circuit Court of Appeals pursuant to Federal Rule of Appellate Procedure 42(b). See United States v. Williams, 08-3377 at R. 8. At the time of dismissal, Diamond-Falk filed a motion signed by Williams that read "I have been informed of my attorney's intention to dismiss my appeal. I concur in my attorney's decision and hereby waive all rights to object or raise any points on appeal." Id. at R. 7.
Williams then filed this § 2255 Motion on June 2, 2009. The Government filed its response on August 14, 2009, after the Court granted Diamond-Falk's Motion for a finding that Williams had waived his attorney-client privilege by challenging his attorney's conduct in a § 2255 Motion. Williams filed a slightly late reply on September 1, 2009, and then filed a Motion to strike the Government's response on January 5, 2010.
Section 2255 allows a person convicted of a federal crime to move the district court that imposed his sentence to vacate, set aside, or correct the sentence. Such relief is limited and only available in cases where there have been jurisdictional or constitutional errors, or where there has been a "complete miscarriage of justice." Harris v. United States, 366 F. 3d 593, 594 (7th Cir. 2004). If "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," then no further action is warranted. 28 U.S.C. § 2255(b). However, if the district court determines that the sentence was entered without jurisdiction, or was "not authorized by law or otherwise open to collateral attack," or was imposed in a manner that violated the petitioner's constitutional ...