The opinion of the court was delivered by: Judge Joan H. Lefkow
Following a jury trialbefore this court in July 2003, petitioner Randy Velleff was found guilty of a conspiracy and attempt to rob a drug stash house and to possess cocaine with the intent to distribute. The jury found by special verdict that Velleff conspired and attempted to possess five kilograms or more of cocaine. Velleff was also convicted of possessing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). He is currently serving a 300-month sentence. Velleff now seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that he was denied the effective assistance of trial and appellate counsel in violation of the Sixth Amendment. For the reasons stated below, Velleff's petition is denied.
Velleff got caught in a sting operation set up by the Bureau of Alcohol, Tobacco, Firearms and Explosives (the "ATF"), in which he agreed to rob a drug stash house of between six to eleven kilograms of cocaine and $50,000 to $60,000. Velleff was initially approached on March 7, 2002 by a confidential informant about the job and indicated his willingness to participate. On March 28, 2002, he met with the informant and an undercover ATF agent, Mark Shaffer, who posed as a drug dealer, at a bar in Elmwood Park, Illinois to further discuss the robbery. Shaffer claimed to need help robbing cocaine and currency from his Mexican drug supplier. He explained that his partner, ATF agent Frank Jury, would place an order for cocaine and then be informed of the location from which to get it. The plan proposed was for Shaffer and Velleff to follow Jury to the stash house, allow Jury to enter to buy the drugs, and then proceed to enter themselves and commit the robbery. Velleff and Shaffer agreed to split the proceeds from the robbery, namely money and cocaine, fifty-fifty. During this meeting, Velleff indicated that he had no problem using violence and that Patrick Deering, his co-defendant, would participate in the robbery as well.
After several phone conversations and cancelled meetings, Velleff, Deering, Shaffer, and Jury met on April 17, 2002 in the Montrose Harbor parking lot to discuss in greater detail the planned robbery. They discussed their entry into the stash house, the number of people who could be present, and the fact that the occupants of the stash house would be armed. Jury informed Velleff and Deering that the stash house was guarded at all times by Manuel, an enforcer who sat on a sofa with a gun always in reach. Velleff reaffirmed that he was committed to the robbery and that he was willing to use force if need be. On April 24, 2002, the day of the planned robbery, Velleff, Deering, and Shaffer met in a Menard's parking lot in Dolton, Illinois. Velleff and Deering arrived in Deering's minivan. Deering showed Shaffer the items they had brought with them to execute the robbery, which included a .357 caliber revolver, ammunition, a bulletproof vest, a surgical knife, a ski mask, rubber gloves, black gloves, and a Gerber knife. Although there was only one gun, Velleff stated that he was going to enter the stash house and take the enforcer's shotgun. Shaffer also told Velleff and Deering that Jury would have a shotgun. Shaffer provided Velleff and Deering with the opportunity to back out of the robbery, but both indicated their desire to proceed. Deering and Velleff then followed Shaffer to a warehouse purportedly owned by Jury from which they were going to follow Jury to the stash house. When they arrived, Shaffer got out of his car and told Deering and Velleff to wait. When he returned and let them know all was clear, they exited the minivan without their gear and were arrested by ATF agents. The minivan was subsequently searched and the tools they had brought with them recovered. Velleff and Deering were placed in the back of a police car. Their subsequent conversation was recorded, in which they discussed being set up.
II. Pre-Trial Proceedings
Velleff and Deering were indicted on July 18, 2002. Velleff was charged in five counts of the indictment with conspiracy to commit robbery affecting interstate commerce, in violation of the Hobbs Act, 18 U.S.C. § 1951 (Count I); conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count II); possessing and carrying a firearm in relation to a crime of violence as charged in Count I, in violation of 18 U.S.C. § 924(c) (Count III); attempted robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951 (Count IV); and attempted possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count V). His initial court-appointed attorney, Thomas Leinenweber, moved to withdraw in January 2003, representing that he had "been notified by the Government of certain things that if true would irreparably destroy the relationship between the Defendant and the undersigned counsel." Crim. R. 39.*fn1 The government had apparently informed Leinenweber of a telephone conversation between Velleff and his then-girlfriend after a bond hearing before the court in which Velleff stated that he would kill Leinenweber if he screwed up. Civ. R. 9-1 at GA 39. Imani Chiphe, of the Federal Defender's Office, was then appointed counsel for Velleff and represented him, with the aid of co-counsel, Heather Winslow, through trial.
On February 3, 2003, prior to Velleff's trial, his co-defendant, Deering, pleaded guilty to Counts I and II of the indictment pursuant to a plea agreement. During the change of plea hearing, Deering admitted that he and Velleff planned to rob the drug stash house and that he brought the .357 revolver, ammunition, a bulletproof vest, surgical steel knives, brass knuckles, and a Gerber knife, among other things, to be used in the robbery. Previously, on November 26,2002, Deering, with his attorney present, had participated in a proffer session with ATF agents Jeffrey Sisto and Dan Durkin. Deering provided a proffer statement, in which he claimed that Velleff approached him with an opportunity to rob a drug stash house but stated that they did not have to rob the house as they would just rob the individuals, later revealed as ATF agents, of the money they were planning to use to buy the drugs. Deering also stated that Velleff wanted to concoct a story that would make the ATF agents comfortable with their participation in the robbery, that Velleff and Deering agreed to wait to see the money the ATF agents had on them the day of the robbery to determine whether they would act or not, and that, upon seeing the money, Deering planned to go to his car, get his gun, and then rob the ATF agents with Velleff's help.
Velleff proceeded to trial in July 2003. At trial, the government presented the tape recorded conversations that took place among Velleff, Deering, Shaffer, Jury, and the confidential informant leading up to the planned robbery. It also presented expert testimony from a Drug Enforcement Administration task force agent, Robert Coleman, regarding the fact that cocaine is manufactured in South America and enters Illinois by crossing both state and national borders. He also testified that a robbery such as the one Velleff intended to participate in would deplete drug dealers' supply, requiring them to obtain more cocaine from South America to replace it.
Velleff's defense at trial was that he and Deering did not conspire to rob the drug stash house but instead to rob the ATF agents with whom they were purportedly cooperating in the robbery. Shaffer testified on cross-examination that he was not sure whether Velleff and Deering planned to double-cross him and Jury by stealing his bait money. The parties stipulated to a summary of Deering's proffer statement, for impeachment purposes only, and of the discussion at Deering's change of plea hearing in which he admitted to the underlying facts of the government's case.
In its closing argument, the government summarized the evidence against Velleff, emphasizing his willingness and intention to participate in the robbery, in addition to his initiative in developing the plan for its execution. It argued that Velleff's theory of the case, that he and Deering intended to rob Shaffer and Jury and not the stash house, was not supported by any record evidence. While acknowledging Deering's proffer statement, the government emphasized that it was not given under oath and that Deering disavowed it several months later during his change of plea hearing, in which he admitted under oath to the facts as presented by the government. The government also argued that it was implausible that Velleff and Deering would have intended to rob Shaffer and Jury, particularly as there was no evidence of their having done surveillance of the warehouse area, they did not know where Jury would have the money, and they were known to Shaffer and Jury, making getting away with such a plan rather risky. In response, counsel for Velleff argued that there was no agreement to rob the stash house but instead only an agreement to rob Shaffer and Jury. Counsel emphasized Shaffer's testimony that sometimes targets turn on the undercover agents and that Shaffer did not know whether Velleff and Deering planned to turn on him during the robbery. He also highlighted Deering's proffer statement and the fact that proffer statements, while not under oath, are still required to be truthful. In rebuttal, the government suggested that had the plan actually been to rob Shaffer and Jury, that plan would have been discussed during the recorded conversation that took place between Velleff and Deering after their arrest. The government further suggested that Deering lied during the proffer session to help himself and Velleff, stating that "Deering's so-called statement to the agents where he lied has about as [m]uch substance as a broth made from the shadow of a dead pigeon." Trial Tr. 529:13--15, July 10, 2003. Defense counsel objected to the remark as inflammatory and improper, and the objection was sustained.
After deliberation, the jury found Velleff guilty on all counts and concluded that he conspired and attempted to possess ...