The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Gladys Shane Wilson's motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The government has responded to the motion (Doc. 9), and Wilson has replied to that response (Doc. 13).
In April 2007, Wilson was indicted in a superseding indictment on one count of conspiracy to distribute more than 5 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. In August 2007, the grand jury returned a second superseding indictment adding two counts of distribution of crack cocaine and two counts of distribution of cocaine, all in violation of 21 U.S.C. § 841(a)(1). In October 2007, the grand jury returned a third superseding indictment raising the amount of crack cocaine alleged to have been involved in the conspiracy to 50 grams.
Wilson was represented at all times by attorney Rodney H. Holmes. On January 10, 2008, Wilson pled guilty without a plea agreement to the distribution charges. On May 5, 2008, pursuant to the Government's request, the Court dismissed the conspiracy count without prejudice. On April 11, 2008, the Court sentenced Wilson to serve 200 months in prison.
On April 15, 2008, Wilson appealed to the Seventh Circuit Court of Appeals. On June 18, 2008, Holmes filed a motion, also signed by Wilson, to voluntarily dismiss the appeal. The Court of Appeals granted her motion and issued its mandate on June 19, 2008. The Government did not move for a reduction of Wilson's sentence pursuant to Federal Rule of Criminal Procedure 35(b).
Wilson filed this timely § 2255 motion on April 9, 2009. In it, she argues, among other things, that Holmes was constitutionally ineffective because he told Wilson she needed to dismiss her appeal in order to have a chance at a reduction in sentence pursuant to Rule 35(b), filed the motion to voluntarily dismiss the appeal after telling her he would not, and failed to tell her of the dismissal in time for her to withdraw her motion to voluntarily dismiss.
In response, the Government argues that Wilson's unsworn allegations about the circumstances surrounding her motion to voluntarily dismiss her appeal are insufficient to support § 2255 relief, especially in light of her signature on the motion.
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Relief under § 2255 is available only if an error is "constitutional, jurisdictional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255.
The Court addresses Wilson's claim of ineffective assistance of counsel based on Holmes' conduct in withdrawing her appeal before turning to the other issues raised in her § 2255 motion. The Court believes ineffective assistance of counsel that causes a defendant to abandon a direct appeal of a criminal case is the functional equivalent of ineffective assistance of counsel in failing to file a notice of appeal after a defendant timely makes such a request. In both situations, the defendant is effectively deprived of any assistance of counsel at all on appeal. That kind of performance warrants awarding the right to proceed as if on direct appeal regardless of the probability of success on appeal. Castellanos v. United States, 26 F.3d 717, 720 (7th Cir. 1994). Thus, if Wilson's argument has merit, the Court believes the proper remedy would be to allow her to proceed as if on direct appeal, which would alleviate the need, at least for the moment, to decide the other issues in her motion.
The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). A party claiming ineffective assistance of counsel bears the burden of showing (1) that his trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009), cert. denied, 130 S. Ct. 2431 (2010); Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000).
To satisfy the first prong of the Strickland test, the plaintiff must direct the Court to specific acts or omissions of his counsel. Wyatt, 574 F.3d at 458. The Court must then consider whether in light of all of the circumstances counsel's performance was outside the wide range of professionally competent assistance. Id. The Court's review of counsel's performance must be "highly deferential[,] . . . indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; accord Wyatt, 574 F.3d at 458. Counsel's performance must be evaluated keeping in mind that an attorney's trial strategies are a matter of professional judgment and often ...