The opinion of the court was delivered by: Murphy, District Judge:
This matter is before the Court on Petitioner Samuel H. Jumper's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Jumper's motion is based on a claim of ineffective assistance of trial and appellate counsel.*fn1 The Government responded to Jumper's motion as ordered by this Court, and Jumper filed a reply. For the reasons set forth below, Jumper's § 2255 motion is denied.
On November 2, 2005, the Government filed a criminal complaint against Jumper and two co-defendants. An indictment was filed on November 9, 2005, charging all three defendants with conspiracy to distribute and possess with intent to distribute 1000 kilograms or more of marihuana from on or about October 7, 2005, to on or about October 9, 2005 (Count 1) and possession with intent to distribute 1000 kilograms or more of marihuana on or about October 9, 2005 (Count 2).
Jumper's co-defendants pleaded guilty before trial; Jumper proceeded to trial, and on July 26, 2006, a jury returned special verdicts finding Jumper guilty on both counts as charged.
The United States Probation Office prepared and filed a Presentence Investigation Report (PSR), which included a two level adjustment for Jumper's leadership role pursuant to U.S.S.G. § 3B1.1(c). The PSR also included in Jumper's criminal history calculation a 1987 conviction for second-degree kidnaping, for which Jumper was released on parole on February 8, 1990, and a 1989 conviction for misdemeanor breaking and entering. At sentencing, the Court overruled Jumper's objection to the application of the leader/organizer enhancement but sustained his objection to the inclusion of the misdemeanor breaking and entering conviction. The Court determined that Jumper had a Total Offense Level of 34 and a Criminal History Category of III, which resulted in an imprisonment guideline range of 188-235 months. Jumper was sentenced on November 27, 2006, to a total term of imprisonment of 188 months, 5 years of supervised release, a $1000 fine, and a $200 special assessment. Jumper's conviction and sentence were affirmed by the United States Court of Appeals for the Seventh Circuit.
Thereafter, Jumper timely filed this motion for relief under § 2255. Jumper raises three grounds to support his ineffective assistance of counsel claim: (1) trial counsel failed to object to the inclusion of the 1987 second-degree kidnaping conviction in the PSR, which added 3 criminal history points; (2) appellate counsel failed to challenge on appeal this Court's finding that the leadership guideline enhancement was appropriate; and (3) trial counsel failed to provide Jumper with certain discovery material that would have enabled him to make an informed decision about whether to plead guilty or proceed to trial.
A hearing is not always required on § 2255 motions. "[A] district court must grant an evidentiary hearing when the petitioner alleges facts that, if proven, would entitle him to relief." Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006) (emphasis in original) (internal quotations omitted). However, if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," then a hearing is not required. Id., quoting 28 U.S.C. § 2255; 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). For an evidentiary hearing to be granted, the Seventh Circuit requires that a motion made pursuant to § 2255 "include an affidavit setting forth the specific basis for relief." Kafo, 467 F.3d at 1067. The affidavit is a threshold requirement; "its absence precludes the necessity of a hearing." Id. The specific allegations in the motion and accompanying affidavit must go beyond merely unsupported assertions; "[m]ere unsupported allegations cannot sustain a petitioner's request for a hearing." Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996). Although Jumper requests a hearing in his motion, he has not submitted the requisite affidavit to support the hearing request. Therefore, the Court will resolve the motion without a hearing.
The Court must grant a motion under 28 U.S.C. § 2255 when a prisoner'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,
83 F.3d at 816, citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993). Relief under § 2255 is available only if an "error is jurisdictional, constitutional, 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) (internal quotation omitted). Motions under § 2255 are subject to various bars, including that of procedural default. "A § 2255 motion is neither a recapitulation of nor a substitute for a direct appeal." McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996) (internal quotation omitted). Thus, a § 2255 motion cannot raise: (1) issues that were raised on direct appeal, unless there is a showing of changed circumstances; (2) non-constitutional issues that could have been raised on direct appeal, but were not; and (3) constitutional issues that were not raised on direct appeal unless (a) the petitioner demonstrates both cause for the procedural default as well as actual prejudice from the failure to appeal or (b) the court's failure to consider the issue would amount to a fundamental miscarriage of justice. See Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994); McCleese, 75 F.3d at 1177; see also Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000). Importantly, a claim of ineffective assistance of trial counsel may properly be raised in a § 2255 motion regardless of whether the defendant raised the issue on direct appeal. See Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. Schuh, 289 F.3d 968, 976 (7th Cir. 2002). Therefore, the claims that Jumper did not raise on direct appeal but that are now couched as ineffective assistance of counsel are not procedurally defaulted.
To establish ineffective assistance of counsel, Jumper bears a heavy burden. He must "show that [his] counsel's performance was deficient, and that the deficiency prejudiced [his] defense." Wiggins v. Smith, 539 U.S. 510, 521 (2003), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney's performance is deficient if it falls "below an objective standard of reasonableness." Id., quoting Strickland, 466 U.S. at 688. When a court evaluates an attorney's performance, the review 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. Put another way, "[d]efense counsel is 'strongly presumed to have rendered adequate assistance and to have 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). To show deficient performance, Jumper must demonstrate "errors so serious that counsel was not functioning as the 'counsel' guaranteed [him] by the Sixth Amendment." Holman, 314 F.3d at 839, quoting Strickland, 466 U.S. at 687.
In general, prejudice is established by showing that "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Benefiel v. Davis, 357 F.3d 655, 661 (7th Cir. 2004), quoting Strickland, 466 U.S. at 694. When analyzing counsel's performance at sentencing, prejudice exists when, but for counsel's action or inaction, the movant would have received a shorter sentence. See Glover v. United States, 531 U.S. 198, 202-04 (2001); Strickland, 466 U.S. at 694. Moreover, a claim of ineffective assistance of counsel must be supported by objective evidence, not merely by a movant's own self-serving testimony. See Cooper, 378 F.3d ...