The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before the Court on the petition of Randall Re ("Re") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the petition is granted in part and denied in part.
In 1997, Re was a resident of the Northern District of Illinois and owned a warehouse in Englewood, Florida. Re wanted to sell the warehouse and a potential buyer surfaced. After several negotiations, the potential buyer decided not to buy Re's property. Instead, the potential buyer leased a portion of an adjacent warehouse owned by Gregory Leach ("Leach"). Re wanted Leach to evict the new tenant so that the tenant could purchase Re's property. Re decided to send Anthony Calabrese ("Calabrese") and another individual to Florida to deliver a "message" to Leach. Calabrese and the other individual assaulted Leach and beat him with a baseball bat. Leach sustained multiple injuries. In 2002, Re was charged in a two-count indictment for conspiracy to commit extortion in violation of 18 U.S.C. § 1951 (the "Hobbs Act") and conspiracy to travel to commit extortion in violation of 18 U.S.C. § 1952.
Around the time of his indictment, Re and his wife were involved in a divorce proceeding in DuPage County. In July 2002, Re was found in contempt of a domestic relations court order for failure to satisfy various financial obligations relating to the dissolution of his marriage and to his child support obligations. During a July 2002 hearing, the domestic relations court ordered Re to sell another warehouse he owned in Woodridge, Illinois (the "Woodridge warehouse") to satisfy his long-standing financial obligations. The court also indicated that the proceeds of the sale were to be held in an escrow account managed by Re's attorney Terry O'Donnell ("O'Donnell"). In August 2002, Re was arrested for failure to satisfy his debts and was held in civil custody at the DuPage County jail. While in custody, Re allowed O'Donnell to take over his pending federal criminal trial, even though Re was already represented by Sergio Rodriguez ("Rodriguez"), a federal defender. In addition to O'Donnell, Re also hired Richard Beuke ("Beuke") to represent him.
Re's jury trial was scheduled to begin on October 28, 2002. On October 22, 2002, Beuke and O'Donnell filed a motion seeking leave to substitute as counsel for Re and for the trial scheduled to begin on October 28, 2002, to be continued. On October 24, 2002, the Court granted the first motion but denied the second. On October 28, 2002, the jury trial commenced and Rodriguez filed a motion to withdraw. The trial court granted the motion and the federal defender was effectively substituted by Beuke and O'Donnell. On November 1, 2002, the jury entered a verdict of guilty on both conspiracy counts and on April 15, 2003, this Court sentenced Re to eighty seven and sixty months' incarceration on each count, both sentences to run concurrently. Re was also ordered to pay a fine of $12,500.
Three weeks after Re's November 1, 2002 conviction, on November 22, 2002, the Woodridge warehouse was finally sold and the proceeds of the sale were placed in an escrow account that O'Donnell had opened. Unbeknownst to Re, O'Donnell embezzled the proceeds of the sale.
Unaware of the embezzlement, Re appealed his conviction and sentence to the Seventh Circuit where he was represented by John Moran. On March 22, 2005, the Seventh Circuit affirmed both convictions but ordered a limited remand to determine whether, in the aftermath of United States v. Booker, 543 U.S. 220 (2005) and United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), we would have imposed the same sentence had we known that the Sentencing Guidelines were advisory. This Court concluded that the same sentences would have been imposed and the Seventh Circuit ultimately affirmed the sentence. Re petitioned the Supreme Court for a writ of certiorari which was denied on April 3, 2006.
Re eventually discovered that O'Donnell had embezzled the funds held in the escrow account. O'Donnell was disbarred, investigated by the Federal Bureau of Investigation ("FBI"), and ultimately committed suicide. On March 6, 2007, Re filed a pro se habeas petition under 28 U.S.C. § 2255 asserting, among other claims, an ineffective assistance of counsel claim. On November 15, 2007, we denied Re's petition and Re appealed. On February 9, 2009, the Seventh Circuit granted Re's request for a certificate of appealability and appointed counsel to assist Re with his appeal. On July 16, 2009, the appointed counsel filed a motion seeking relief from the final order and judgment pursuant to Federal Rule of Civil Procedure 60(b). On August 4, 2009, we granted Re's motion and allowed him to amend his Section 2255 petition. On August 14, 2009, the Seventh Circuit remanded the matter to this Court pursuant to Circuit Rule 57. Re has now filed an amended petition to vacate, set aside, or correct his sentence pursuant to Section 2255. In his petition, Re asserts that his Sixth Amendment right to counsel was violated during his trial, his sentencing, and on appeal.
Section 2255 permits a prisoner to ask the sentencing court to vacate, set aside, or correct a sentence after direct review is completed on the grounds that the sentence was imposed in violation of the Constitution or laws of the United States. Such collateral relief is only available where the sentence involved a constitutional error or resulted in a complete miscarriage of justice. Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994). In evaluating a Section 2255 petition, the district court must draw all reasonable inferences in favor of the government. Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992).
Re's petition advances three grounds for relief: (1) Re's sentence is illegal because his attorneys rendered ineffective assistance during the trial proceedings; (2) Re's sentence is illegal because O'Donnell was conflicted during the sentencing; and (3) Re's appellate counsel rendered ineffective assistance because he failed to raise an important legal argument on appeal. We examine each ground in turn.
I. Ineffective Assistance Of Counsel During Trial
Re complains that he was denied his Sixth Amendment right to counsel during the trial proceedings because his attorneys did not have adequate time to prepare and because O'Donnell was burdened with a conflict ...