The opinion of the court was delivered by: Murphy, District Judge:
Mickey L. Dooley filed a motion pursuant to 28 U.S.C § 2255 to vacate, set aside, or correct sentence by a person in federal custody (Doc. 1). He filed similar motions seeking the same relief (Docs. 2, 12, 14). The Government's response and Mr. Dooley's reply followed (Docs. 5, 8). Mr. Dooley also filed three motions to compel the production of physical evidence relating to his allegations (Docs. 3, 10, 11) and requested that the Court unseal the trial testimony of Assistant United States Attorney Deirdre Durborow (Docs. 9, 13). Now he seeks summary judgment (Docs. 15, 16) and release on bond pending the outcome of the Court's decision (Doc. 18). The issues raised in Mr. Dooley's motions for summary judgment and for release pending the Court's ruling track those raised by his other motions and will be considered together. All of his claims are denied without a hearing for the reasons that follow.
On January 25, 2008, an indictment was returned against Mr. Dooley charging him with removing items and money from the evidence locker of the Alton Police Department (APD), where he was employed for three years from May 2004 to April 2007 as the APD evidence custodian. On May 22, 2008, a superseding indictment was returned charging Mr. Dooley with eight counts: making false statements during an investigation conducted by the Federal Bureau of Investigation (FBI) (Counts 1 and 2); wire fraud (Count 3); attempting to conceal an object with intent to impair its availability for use in an official proceeding (Count 4); disposal of money stolen from two banks (Counts 5 and 6); misapplication of property under the control of a local government (Count 7); and failure to file a federal income tax return (Count 8). Attorney Gordon Freese was appointed to represent Mr. Dooley and remained his attorney during all times relevant to the pending motions. On July 20, 2008, Attorney Freese filed a motion to dismiss the superseding indictment on the basis that each count of the indictment was deficient (Doc. 5-6). The Court denied the motion to dismiss after hearing argument on August 4, 2008. A jury found Mr. Dooley guilty on all counts, and the Court imposed an above guidelines sentence of 120 months imprisonment. On appeal, the United States Court of Appeals for the Seventh Circuit vacated the conviction on Count 3 and remanded the case for resentencing. After reviewing the sentencing factors in 18 U.S.C. § 3553, the Court determined that, despite the acquittal on Count 3, a guidelines sentence was insufficient to satisfy the nature and seriousness of Mr. Dooley's offenses and imposed the same above guidelines sentence of 120 months imprisonment.
Evidentiary Hearing Standard
A 28 U.S.C. § 2255 motion does not mandate an evidentiary hearing. Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996). "[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 quotation marks 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. Allegations that are "vague, conclusory, or palpably incredible rather than detailed and specific" do not warrant a hearing. Bruce v. United States, 256 F.3d 592, 597 (7th 2001) (internal quotation omitted). Likewise, "mere speculation" does not warrant an evidentiary hearing, as the petitioner must file a sworn affidavit providing specific details that show he has actual proof of the allegations he is making. Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002); cf. Daniels v. United States, 54 F.3d 290, 293 (7th Cir. 1995) (granting evidentiary hearing on § 2255 petition based on conflicting evidence contained in sworn affidavits of petitioner and his former attorney). For evidentiary hearing consideration, the Seventh Circuit requires that a motion made under § 2255 "include an affidavit setting forth the specific basis for relief." Kafo, 467 F.3d at 1067. An affidavit accompanying the petition is a threshold requirement; "its absence precludes the necessity of a hearing." Id. The petition must be accompanied by a specific and detailed affidavit showing that the petitioner has actual proof of the allegations; "[m]ere unsupported allegations cannot sustain a petitioner's request for a hearing." Prewitt 83 F.3d at 819, quoting Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir. 1989).
Mr. Dooley's § 2255 motion does not specifically request an evidentiary hearing and is not supported by an affidavit. A careful review of the motion, file, and record discloses that an evidentiary hearing is not required; the Court will resolve Mr. Dooley's motions without a hearing.
Mr. Dooley's Request for Appointment of Counsel
A § 2255 proceeding is an independent civil suit for which there is no constitutional right to counsel. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); see also Pruitt v. Mote, 503 F.3d 647, 657 (7th Cir. 2007) (en banc); Powell v. Davis, 415 F.3d 722, 727 (7th Cir. 2005);
Pitsonbarger v. Gramley, 141 F.3d 728, 737 (7th Cir. 1998); Oliver v. United States, 961 F.2d 1339 (7th Cir. 1992). Rule 8(c) of the rules governing § 2255 proceedings, however, allows for appointment of counsel for indigent prisoners if an evidentiary hearing is required. See FED. R. GOV. § 2255 Cases 8(c). When considering a request for appointment of counsel, the Court shall make the following inquiries: "(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself?" Pruitt, 503 F.3d at 654-55. Mr. Dooley has made no indication that he has attempted to obtain counsel for himself. His claims are presented in a clear, articulate manner, the issues raised are not complex, and there is no need for an evidentiary hearing. Therefore, the request for appointment of counsel is denied.
Collateral Review Under 28 U.S.C. § 2255
The Court is required to vacate, set aside, or correct the sentence of a prisoner if it finds that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. "Habeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Kafo, 467 F.3d at 1068. There are "significant procedural hurdles" to consideration of a petitioner's habeas claim under § 2255. Bousley v. United States, 523 U.S. 614, 615 (1998). Collateral relief is appropriate only when the error is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. Unites States, 113 F.3d 704, 705 (7th Cir. 1997). Habeas relief under § 2255 is not a substitute for direct appeal. Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000). Thus, "[c]laims not raised on direct appeal are barred from collateral review unless upon review, [the Court is] convinced that a failure to consider the issue would amount to a fundamental miscarriage of justice." Id. at 433. Specifically, a § 2255 motion "can not raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal." Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) (emphasis in original), overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).
Despite these proscriptions on the availability of § 2255 collateral review, procedural default cannot serve as the reason for dismissing an ineffective assistance of counsel claim brought under § 2255. Fuller v. United States, 398 F.3d 644, 650 (7th Cir. 2005). Ineffective assistance of counsel claims "may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003). A § 2255 motion is a more appropriate venue than direct appeal for raising ineffective assistance of counsel claims, as the opportunity to adequately "develop the factual predicate for the claim" arises independent of the trial record. Id.
Ineffective Assistance of Counsel
The Court evaluates an ineffective assistance of counsel claim under the well known two-prong Strickland test. McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir. 2007), citing Strickland v. Washington, 466 U.S. 668, 694 (1984). There is a heavy burden of proof on a petitioner asserting an ineffective assistance of counsel claim. Harris v. Reed, 894 F.2d 871, 874 (7th Cir. 1990). "The benchmark for judging any claim to ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. Under Strickland, the petitioner must prove (1) that his attorney's performance fell below an objective standard of reasonableness and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." McDowell, 497 F.3d at 761, citing Strickland, 466 U.S. at 690, 694. If the Court finds either the performance or the prejudice component of the ineffective assistance claim to be insufficient under the Strickland test, then it need not consider the sufficiency of the other component. United States v. Slaughter, 900 F.2d 1119, 1124 (7th Cir. 1990). "A defendant's failure to satisfy either prong is fatal to his claim." Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993).
The Court's review of attorney performance is "'highly deferential,' 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. 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). The Court presumes that counsel made reasonable strategic choices unless the petitioner produces evidence rebutting that presumption. Id. Hence, it is "not easy for a petitioner to show that his counsel's performance was objectively ineffective, as Y '[t]he reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential.'" Hartjes v. Endicott, 456 F.3d 786, 790 (7th Cir. 2006), quoting Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). In order to establish that counsel's performance was deficient, the defendant must show errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Hartjes, 456 F.3d at 790.
Proving that deficient performance of counsel actually prejudiced the defense requires showing 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), citing Strickland, 466 U.S. at 694; see also Williams v. Taylor, 529 U.S. 362, 363 (2000). This test is also "highly deferential to counsel and presumes reasonable judgment and effective trial strategy." Hays v. United States, 397 F.3d 564, 568 (7th Cir. 2005). The petitioner must demonstrate that counsel's error actually had an adverse effect. Strickland, 466 U.S. at 693. However, "[n]ot every adverse consequence of counsel's choices is 'prejudice' for constitutional purposes." United States v. Springs, 988 F.2d 746, 749 (7th Cir. 1993). Counsel's conduct must be shown to have "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Cooper, 378 F.3d at 642, citing Strickland, 466 U.S. at 686. The petitioner must prove that counsel's ineffectiveness deprived him of a substantive or procedural right to which ...