The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
E-FILED Thursday, 17 November, 2011 10:27:16 AM Clerk, U.S. District Court, ILCD
This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct his sentence under 28 U.S.C. § 2255 (Doc. 1) and Respondent's Motion to Dismiss and Response to Motion to Vacate, Set Aside or Correct Sentence (Doc. 3). Petitioner has not filed a reply to Respondent's Response or a response to Respondent's Motion to Dismiss. For the reasons stated below, Petitioner's Motion to Vacate, Set Aside, or Correct his sentence is denied, and Respondent's Motion to Dismiss is granted.
Petitioner has requested an evidentiary hearing on his claims. (Doc. 1). He is entitled to an evidentiary hearing only if he has alleged facts that, if proven, would entitle him to relief. Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). As discussed below, Petitioner has not met this burden. As the factual issues relevant to Petitioner's claims in this action can be resolved on the record, an evidentiary hearing is not required. Oliver v. United States, 961 F.2d 1339, 1343 n. 5 (7th Cir. 1992) (citing United States v. Frye, 738 F.2d 196 (7th Cir. 1984)) ("No hearing is required in a section 2255 proceeding . . . if the factual matters raised by the motion may be resolved on the record before the district court.").
Petitioner was charged on January 28, 2009 with Possession with Intent to Distribute Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), following the seizure of cocaine from a gym bag that was determined to be Petitioner's at the Lexington Hills Apartment Complex in Peoria, Illinois on January 8, 2009. After receiving the apartment resident's consent to search the gym bag, police discovered that the bag contained 180 grams of crack cocaine, a handgun, ammunition, and digital scales. Once arrested, Petitioner denied any knowledge of the bag or of the items contained therein. The apartment resident then informed the police that Petitioner had brought the bag to her apartment.
At Petitioner's change of plea hearing on June 19, 2009, Petitioner accepted responsibility for his crime. A plea agreement was filed on that date, in which Petitioner agreed to plead guilty to violating 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The plea agreement included descriptions of the penalties to which Petitioner was to be exposed as a result of his plea, and gave detailed descriptions of the waivers of rights of appeal and collateral attack to which Petitioner was assenting by entering into the plea agreement. At the plea hearing, the Court engaged in a colloquy with Petitioner to ensure his competence to plead guilty and to ensure the knowing and voluntary nature of the plea. During the colloquy, the Court explained to Petitioner that, pursuant to the plea agreement, he was agreeing to waive his right to appeal his conviction or sentence. Petitioner testified that he understood these waivers and that he was willing to waive his appeal rights for the benefits of the plea agreement with the government. Petitioner also testified that he read the plea agreement, discussed it with his attorney, and understood its terms. As a result of the change-of-plea colloquy, the Court determined that Petitioner was knowingly and voluntarily pleading guilty to the charged offense, pursuant to the plea agreement, and that he was fully competent to make that decision.
Petitioner's sentencing hearing was held on May 28, 2010. Because of his extensive criminal history, Petitioner's offense level was determined to be 37, and his criminal history category to be IV. Based on his prior felony convictions, Petitioner faced a mandatory life sentence pursuant to 21 U.S.C. §841(b)(1)(A). However, the government agreed to a downward departure in Petitioner's sentence as a result of the "substantial assistance" that Petitioner provided. Petitioner was sentenced to 264 months imprisonment, ten years supervised release, and a $100 special assessment.
Petitioner filed the present Motion on February 22, 2011. It in, Petitioner argues that his counsel was ineffective for failing to file a notice of appeal when Petitioner asked counsel to do so. Specifically, Petitioner asserts that he "informed his counsel to file notice of appeal to the firearm enhancement and also challenge if the prior conviction qualified under the status of career offender provision." (Doc. 1 at 2). Petitioner further contends that his counsel indicated to both Petitioner and Petitioner's family that he was filing such an appeal. Petitioner later discovered that no notice of appeal had ever been filed, which, he argues, "prejudice[d] him to [a] fair and just outcome" and potentially exposed him to a harsher sentence than he might otherwise have ultimately received. (Doc. 1 at 3). Petitioner now seeks to have his sentence vacated by the Court. He also seeks requests "that an evidentiary hearing be held to resolve the issues at bar." (Doc. 1 at 3).
Section 2255 of Chapter 28 of the United States Code provides that a sentence may be vacated, set aside, or corrected "upon the ground that the sentence was imposed in violation of the Constitution." "Relief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Thus, § 2255 is limited to correcting errors of constitutional or jurisdictional magnitude or errors constituting a fundamental defect that results in a complete miscarriage of justice. Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994).
One ground for relief under § 2255 is that argued by Petitioner: ineffective assistance of counsel in violation of the Sixth Amendment right to counsel. For Sixth Amendment claims of ineffective counsel, the Supreme Court established a two-prong test in Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail, Petitioner must establish that (1) counsel's representation fell below the threshold of objective reasonableness, and (2) but for counsel's deficiency, "there is a reasonable probability that . . . the result of the proceeding would have been different." Id. at 687, 694. In evaluating counsel's representation, the Court must be highly deferential and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. If Petitioner fails to show that counsel's alleged failure prejudiced his case, this Court need not even consider the first prong of whether Petitioner's counsel acted outside of the range of professionally competent assistance. Id. at 697 ("if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.").
In his Petition, Petitioner attempts to avoid the second prong of Strickland by arguing that "failure to file a required NOA is per se ineffective assistance of counsel, with or without showing the appeal would have merit." (Doc. 1 at 3). Petitioner cites Roe v. Flores-Ortega, 528 U.S. 470 (2000) for this proposition. But there is an important distinction between the facts in Roe and those in the present case: Roe did not involve a waiver of the right to appeal. The Seventh Circuit explained the import of this distinction in Nunez v. United States:
Roe is a modest exception to Strickland's approach. Unless the lawyer simply doesn't show up, it is essential to establish deficient performance and prejudice. Roe concludes that failure to appeal is a form of not showing up for duty. But Roe's rationale presumes that the defendant has contested the charges; when a defendant not only pleads guilty but also waives the right to appeal, it is hard to classify the absence of appeal as the lawyer taking a vacation. 546 F.3d 450, 454 (7th Cir. 2008). ...