The opinion of the court was delivered by: Charles P. Kocoras, District Judge:
This matter comes before the Court on the motion of Thaddeus Bania ("Bania") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied.
Bania is a former employee of Warehouse, Mail Order, Office, Technical and Professional Employees Union, Local 743 of the International Brotherhood of Teamsters ("Local 743"). Bania and several other Local 743 employees were investigated for conspiring to rig, through the use of the United States mail, the October and December 2004 elections of Local 743's officers. Bania was suspected of converting hundreds of official ballot packages and casting them in favor of incumbent candidates Robert Walston ("Walston") and Richard Lopez ("Lopez"). On March 6, 2008, a federal grand jury returned a multi-count indictment charging Bania, Walston, Lopez, David Rodriguez, and Cassandra Mosley with conspiracy to commit mail fraud and theft from a labor organization, 18 U.S.C. §§ 2, 1341, 1346, four counts of mail fraud, 18 U.S.C. §§ 2, 1341, 1346, and five counts of embezzling, stealing, and unlawfully and willfully abstracting and converting to their own use and to the use of others the property and other assets of a labor organization, 29 U.S.C. §§ 2, 501(c). After several continuances, Bania's trial commenced on April 6, 2009. At the close of all evidence, a special verdict form, listing the counts with which each defendant was charged in the indictment, was submitted to the jury. On May 1, 2009, the jury found Bania guilty of one count of conspiracy, four counts of mail fraud, and six counts of theft from a labor organization.
With respect to the mail fraud counts, the jury found Bania guilty on the basis of two separate liability theories. According to the special verdict form, he was found guilty of engaging in a scheme to defraud victims "of money or property" and "of the intangible rights to honest services." On August 27, 2009, this Court sentenced Bania to forty months' incarceration on each count of the conviction, to run concurrently. The Court also ordered restitution in the amount of $900,936.
On September 13, 2010, Bania brought this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Because Bania based his motion, in part, on his attorney's failure to appeal his conviction, the Court conducted an evidentiary hearing to determine whether Bania waived his right to appeal. The Court concluded that Bania knowingly declined to exercise his right to appeal after having been advised of this right by his attorney.
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. 28 U.S.C. § 2255. Such collateral relief is only available, however, where the sentence involved a constitutional error or results 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 reviews the record and draws all reasonable inferences in favor of the government. Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992).
Bania contends that he is entitled to relief based on a Supreme Court decision rendered after his conviction. On June 24, 2010, the Supreme Court vacated the conviction of Jeffrey Skilling, former chief executive officer of the bankrupt corporation Enron, and held that the "honest services" provision of the mail fraud statute applies only to bribes and kickbacks. Skilling v. United States, 130 S. Ct. 2896, 2933 (2010).
Bania claims that the Supreme Court's decision in Skilling requires that his sentence be set aside. Bania also claims that he is entitled to habeas relief because his trial counsel was ineffective.
I. The "Intangible Right Of Honest Services" Jury Instructions
An error in jury instructions does not automatically require the reversal of a conviction; rather, such an error is subject to harmless error analysis. Skilling, 130 S.Ct. at 2934; Hedgpeth v. Pulido, 555 U.S. 57, 60-61 (2008). Pursuant to the harmless error standard, an instructional error results in reversal only if, in light of the record as a whole, the error had a "substantial and injurious effect or influence" on the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Under this standard, instructional errors must result in "actual prejudice." Id. at 637; Jenkins v. Nelson, 157 F.3d 485, 494 (7th Cir. 1998) (citing California v. Roy, 519 U.S. 2, 4 (1996)). Additionally, a petitioner will not obtain relief unless the habeas court has "grave doubt" as to the harmlessness of the constitutional error. Jones v. Basinger, 635 F.3d 1030, 1052 (7th Cir. 2011) (citing O'Neal v. McAninch, 513 U.S. 432, 445 (1995)). In applying this test, "the habeas court [must] evaluate to some extent the probability of the outcome if the case were tried under proper instructions." Toney v. Peters, 48 F.3d 993, 998 (7th Cir. 1995).
Bania asks that this Court vacate his conviction because the Supreme Court in Skilling held that a conviction based on the "intangible right of honest services" is unconstitutional and, as a result, the court improperly instructed the jury on the mail fraud counts. Bania was convicted of violating 18 U.S.C. §1341, which prohibits the use of the mail to "devise any scheme or artifice to defraud." A "scheme or artifice to defraud" includes a "scheme or artifice to deprive another of the intangible right to honest services." 18 U.S.C. § 1346. The Supreme Court in Skilling did not strike down the "honest services" statute in its entirety, but rather limited the application of this statute to cases involving bribery ...