The opinion of the court was delivered by: Herndon, Chief Judge:
Pending is petitioner James Rollins's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). Many of the claims set forth in petitioner's 2255 motion have already been disposed of in a prior Order of this Court (Doc. 16). For the following reasons, petitioner's motion is DENIED as to all remaining claims.
The procedural history of this matter is set out in this Court's prior Order (Doc. 16) which partially dismisses many of the claims in petitioner's 2255 motion. There are essentially three issues that remain to be decided: (a) ground two, failure to file a notice of appeal; (b) grounds 3-7, failure to call witnesses/failure to produce evidence and witnesses introduced in opening statements, failure to investigate potential witnesses, failure to conduct a reasonable pretrial investigation, and failure to provide a defense; and (c) ground 8, failure to file a motion to dismiss the indictment.
An evidentiary hearing on the 2255 motion was held March 2, 2011. Petitioner was represented at that hearing by pro bono counsel. Defense trial counsel John Rogers and Adam Fein testified, and arguments were heard by both petitioner and respondent.
II. Law regarding ineffective assistance of counsel claims generally
To establish a claim of ineffective assistance of counsel, a petitioner must show two things. First, the petitioner must show that his counsel performed in a deficient manner. Strickland v. Washington, 466 U.S. 668, 687 (1984). "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representations fell below an objective standard of reasonableness." Id. at 687-688. Judicial scrutiny of counsel's performance must be "highly deferential" as it is "all too tempting for a defendant to second-guess counsel's assistance after conviction," and "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689. In addition, the petitioner must overcome a strong presumption that the attorney's conduct falls within a wide range of reasonable professional assistance.Id.
Second, the petitioner must show that counsel's deficient performance prejudiced the defense. Id. at 687. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable." Id. See also Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (holding that a defendant must show counsel's errors rendered the proceedings "fundamentally unfair or unreliable" in addition to simply showing prejudice).Even if a petitioner shows that particular errors of counsel were unreasonable, petitioner must show that counsel's errors "actually had an adverse effect on the defense." Strickland, 466 U.S. at 693.
III. Alleged failure to file a notice of appeal (Ground 2)
Petitioner's second ineffective assistance of counsel claim is that defense counsel denied petitioner the right to appeal after he requested they do so.
Mr. Rogers and Mr. Fein testified at the evidentiary hearing it was normal for communication to be transmitted between counsel and petitioner through Starla Rollins, petitioner's sister. She had served as an intermediary numerous times prior to trial and prior to sentencing, and this system continued after sentencing as well, during the discussion of appeal. Defense counsel testified petitioner at no time indicated verbally that he wished to file an appeal. A letter from petitioner did arrive at defense counsel's firm indicating a desire to appeal, and defense counsel moved for extension of time to file a notice of appeal. The potential pitfall in an appeal of the sentence in this case, as explained by defense counsel, was a reversal of the imposed sentence and imposition of a sentence twice as lengthy. Because of the special verdict regarding the amount of drugs, petitioner was sentenced to an amount half that of what the government believed was appropriate. Defense counsel testified this was explained and discussed with both petitioner and Ms. Rollins. After the letter, and after the motion for an extension of time to file a notice of appeal, Ms. Rollins called defense counsel and informed them petitioner did not wish to file an appeal.Accordingly, no notice of appeal was filed. After this call, defense counsel testified there was no further communication from either petitioner or Ms. Rollins about an appeal or status of an appeal.
While ordinary alleged trial blunders of counsel are reviewed according to Strickland's dual test of reasonableness and prejudice, an attorney's failure to file an appeal is treated according to a somewhat more compressed analysis. In Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994), the Seventh Circuit announced a rule that an attorney's failure to file an appeal, if requested to do so by their client, shall be deemed inherently prejudicial. 26 F.3d at 720. In such a circumstance, the probability of success on appeal is irrelevant and need not be determined for the purposes of evaluating an effective assistance claim. Id. Generally, Castellanos stands for the proposition that failure to follow a client's request to file an appeal results in constitutionally ineffective assistance of counsel per se, as it effectively amounts ...