The opinion of the court was delivered by: Herndon, Chief Judge:
Before the Court is movant James Cooper's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (Doc. 1). Cooper was found guilty by a jury on drug and gun charges, 21 U.S.C. §§ 846, 841(a)(1), 18 U.S.C. §§ 922(g)(1), 924(a)(2), and was sentenced to 285 months' imprisonment. (Doc. 174, 03-cr-40059). He appealed and was appointed counsel, but his appointed counsel sought leave to withdraw under Anders v. California, 386 U.S. 738 (1967), because he could not discern a non-frivolous issue to pursue. The appellate court agreed with counsel, granted his motion, and dismissed the appeal. See United States v. Cooper, 224 Fed. Appx. 537 (7th Cir. 2007).Now, in his § 2255 motion, Cooper seeks to vacate, set aside, or correct his sentence based upon claims of ineffective assistance of trial counsel. For the reasons that follow, the motion is denied.
On July 10, 2003, a criminal complaint alleging conspiracy to distribute crack cocaine was filed against Cooper and his confederate James Golden, who used to run drugs for Cooper. Both were arrested and made their initial appearances that same day. On July 15, 2003, attorney Gary E. Milone, Sr. was appointed as Cooper's counsel based on Cooper's sworn financial affidavit. On August 7, 2003, a one count indictment charging conspiracy to distribute and possess with intent to distribute five grams or more of crack cocaine was filed against Cooper and Golden. On August 15, 2003, Cooper was arraigned and entered a not guilty plea. Trial was set for October 14, 2003.
On October 6, 2003, a final pretrial conference was held, where attorney Milone made an oral motion to withdraw as Cooper's counsel because Cooper had retained private counsel, attorney Charles Stegmeyer. The Court granted the motion to withdraw and the parties' motion to continue, finding that the failure to grant the motion would likely result in miscarriage of justice and that the ends of justice outweighs the best interest of the public and the defendant in a speedy trial. Attorney Stegmeyer entered his appearance to represent Cooper and the Court rescheduled the trial date for December 8, 2003.
On November 21, 2003, at the final pre-trial conference, both parties moved to continue the trial. The matter was set for a trial setting of February 11, 2004. On January 23, 2004, the Court held a final pre-trial conference and took up the issue of numerous letters it had received from Cooper. On its own motion, the Court ordered Cooper to be sent "to medical for an evaluation." Therefore, the Court continued the trial setting until April 5, 2004.
On March 25, 2004, the Court ordered Cooper to "be transported IMMEDIATELY AND FORTHWITH" to a federal medical facility for full evaluation and treatment. On March 29, 2004, the Court entered a supplemental order explaining his reasons for ordering Cooper to undergo an examination to determine his competency to stand trial.
On May 21, 2004, the Court entered an order, noting that it had been informed that defendant was still in medical and unable to be in court. Thus, the Court reset the trial date for July 12, 2004. On June 15, 2004, the Court entered an order resetting the trial setting of July 12, 2004, until June 28, 2004. On June 24, 2004, following the final pretrial conference, the Court entered an order adopting the evaluation report finding Cooper competent to stand trial. The Court also noted that counsel for the government advised the Court that they were working on setting up a proffer for Cooper, and defense counsel made an oral motion to continue trial and have the case set for a change of plea. The Court noted that defendant filed a written waiver of speedy trial with the Court. Accordingly, the Court set the case for a change of plea hearing on August 18, 2004.
On July 26, 2004, attorney Stegmeyer filed a motion to withdraw as movant's attorney, noting that the attorney-client relationship had broken down irretrievably. Two days later movant filed a pro se motion to substitute counsel. On July 29, 2004, the Court entered an order granting the motion to withdraw and substitute counsel. On August 12, 2004, attorney Matthew Vaughn was appointed to represent movant. On August 17, 2004, movant filed a motion to continue the change of plea hearing so counsel could review discovery and discuss with movant how to proceed. On August 18, 2004, movant filed a pro se motion to withdraw the waiver of speedy trial. On August 24, 2004, the Court granted counsel's motion to continue, resetting the change of plea hearing until September 24, 2004. The next day the Court struck movant's pro se motion to withdraw the speedy trial waiver because movant did not have a right to submit a pro se brief when represented by counsel.
On September 24, 2004, the parties appeared for the change of plea hearing and movant moved to continue the matter because he had only been in this case a short time. The Court granted movant's request and reset the trial setting to November 15, 2004. On November 2, 2004, movant filed a motion to continue the final pretrial conference and trial. On November 5, 2004, the Court granted the motion to continue and reset the trial date until February 7, 2005. On November 24, 2004, movant filed a pro se motion of ineffective assistance of counsel motion against attorney Vaughn contending that Vaughn has continually refused to file motions on his behalf, including a motion for dismissal and a motion to withdraw his speedy trial waiver. He also alleged that he did not consent to Vaughn filing a motion to continue on November 2, 2004, in violation of his speedy trial rights. The Court construed this as a motion for new counsel and set the matter for hearing. On December 17, 2004, the Court heard from Cooper and Vaughn regarding Cooper's pro se motion which the Court construed as a motion for new counsel. The Court advised Cooper that he could represent himself in this matter but Cooper declined, and the Court ordered Vaughn to remain in this case.
On January 4, 2005, a superseding indictment was filed against Cooper. On January 20, 2005, a second superseding indictment was filed. On January 31, 2005, the Court held a final pretrial conference and entered an order noting that Cooper would not waive the thirty-day period required to be given to him after arraignment unless waived or sign anything waiving the thirty day period, and reset the final pretrial conference for March 3, 2005, with a jury trial set for March 21, 2005.
On February 8, 2005, a third superseding indictment was filed charging Cooper with two counts of conspiracy to distribute crack cocaine, three counts of distribution of crack cocaine, possession with intent to distribute crack cocaine, possession with intent to distribute cocaine, and possession of a firearm by a felon. On March 4, 2005, the Court entered an order indicating that Judge Herndon would preside over Cooper's trial on March 21, 2005, because Judge Gilbert had another criminal trial. On March 9, 2005, attorney Vaughn filed a motion to continue, or in the alternative, request for other relief, noting that movant has repeatedly told counsel that movant does not wish for a continuance of the trial and that on multiple occasions, defendant had sought to revoke the waiver of speedy trial he filed on June 24, 2012, but that counsel needed additional time to adequately prepare for trial or alternatively wanted an order directing the Marshall's office to serve amended subpoenas on individuals who were to testify at trial. On March 10, 2012, the Court entered an order finding that because the Court finds "further delay of this trial unnecessary and, in fact, problematic, the Court DENIES Defendant's motion to continue (Doc. 108)." "However, the Court GRANTS Defendant's alternative request to have amended subpoenas served on individuals to appear at trial." Trial began March 21, 2005.
At trial,*fn1 the evidence established that police sent an informant to make three separate controlled buys of crack from Golden, who ran drugs for Cooper. Golden testified for the government that on all three occasions he used the informant's cell phone to contact Cooper, who then -- outside of the informant's view -- delivered the drugs. Golden also testified that he acted as the middleman for Cooper in other drug transactions and that Cooper occasionally fronted him drugs, expecting payment only after he resold them. The informant corroborated Golden's account.
Surveillance officers who monitored the controlled buys also testified that they observed Cooper and Golden meet during all three transactions, and that they found the marked money from the third purchase in Cooper's car when they arrested him. Following his arrest, Cooper disclosed after Miranda warnings the numbers assigned to his pager and cell phone; those numbers were dialed from the informant's cell phone during the controlled buys. Officers also executed a search warrant of Cooper's apartment and found roughly 540 grams of crack, 340 grams of powder cocaine, three firearms, and $8,400 in currency. The police overlooked $112,000 in $20 bills that a maintenance man found later.
The government also called nine other witnesses who bought drugs from Cooper, sometimes through middleman. One witness explained that Cooper would usually front him drugs twice a day. He testified that they would split "fifty-fifty" the proceeds from the ensuing drug sales -- the witness sold the crack for twice what he agreed to pay the defendant.
The jury found Cooper guilty on all charges but one, acquitting Cooper on one count of conspiracy to distribute cocaine. Following the jury verdict, attorney Vaughn moved to withdraw and privately retrained attorney Christopher Kelly entered his appearance. Cooper was sentenced to 285 months' imprisonment. He appealed and was appointed new counsel. Based upon the strained relationship between his appointed counsel and Cooper, his counsel moved to withdraw, which was granted. Again, Cooper was appointed new counsel, but his appointed counsel sought leave to withdraw under Anders because he could not discern a non-frivolous issue to pursue. The appellate court agreed with counsel, granted his motion, and dismissed the appeal. See Cooper, 224 Fed. Appx. 537.Cooper filed an application for a writ of certiorari with the Supreme Court, which was denied on February 25, 2008. Cooper v. United States, 128 S. Ct. 1445 (2008).
On March 2, 2009, movant's § 2255 motion was filed in this Court. In his § 2255 motion, movant raised eight grounds of ineffective assistance of trial counsel, alleging claims against attorneys Milone, Stegmeyer, Vaughn, and Kelly. (Doc. 1). On March 20, 2009, Cooper filed a memorandum in support of his § 2255 motion, and on November 6, 2009, the Court ordered the government to respond to the motion (Doc. 3). On March 22, 2010, the government filed its response (Doc. 10), contending that Cooper's § 2255 motion was untimely and also responding to the merits of his motion. Cooper filed two separate replies to the government's response, one with regard to the timeliness issue and the other as it pertained to the merits of his claims (Docs. 13 & 14). The Court will address the timeliness issue first, followed by the eight grounds raised in his § 2255 motion.
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. More precisely, "[r]elief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). As a result, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996).
Of course, a § 2255 motion does not substitute for a direct appeal. A defendant cannot raise constitutional issues that he could have but did not directly appeal unless he shows good cause for and actual prejudice from his failure to raise them on appeal or unless failure to consider the claim would result in a fundamental miscarriage of justice. Bousley v. United States, 523 U.S. 614, 622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. Meanwhile, a § 2255 motion cannot pursue non-constitutional issues that were unraised on direct appeal regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The only way such issues could be heard in the § 2255 context is if the alleged error of law represents "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979).
The failure to hear a claim for ineffective assistance of counsel in a § 2255 motion is generally considered to work a fundamental miscarriage of justice because often such claims can be heard in no other forum. They are rarely appropriate for direct review since they often turn on events not contained in the record of a criminal proceeding. Massaro v. United States, 538 U.S. 500, 504-05 (2003); Fountain, 211 F.3d at 433-34. Further, the district court before which the original criminal trial occurred, not an appellate court, is in the best position to initially make the determination about the effectiveness of counsel in a particular trial and potential prejudice that stemmed from that performance. Massaro, 538 U.S. at 504-05. For these reasons, ineffective assistance of counsel claims, regardless of their substance, may be raised for the first time in a § 2255 petition.
An evidentiary hearing on a § 2255 habeas petition is required when the motion is accompanied by "a detailed and specific affidavit which shows that the petitioner has actual proof of the allegations going beyond mere unsupported assertions." Barry v. United States, 528 F.2d 1094, 1101 (7th Cir. 1976) (footnote omitted). "Mere unsupported allegations cannot sustain a petitioner's request for a hearing." Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir. 1989). For the reasons stated below, movant's allegations are unsupported by the record; subsequently, the Court sees no reason to hold an evidentiary hearing on the issues raised.
The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). A party claiming ineffective assistance of counsel bears the burden of showing (1) that his trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Fountain, 211 F.3d at 434. Either Strickland prong may be analyzed first; if that prong is not met, it will prove fatal to plaintiff's claim. Strickland, 466 U.S. at 697; Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993).
Regarding the first prong of the Strickland test, counsel's performance must be evaluated keeping in mind that an attorney's trial strategies are a matter of professional judgment and often turn on facts not contained in the trial record. Strickland, 466 U.S. at 689. The petitoner's burden is heavy because the Strickland test is "highly deferential to counsel, presuming reasonable judgment and declining to second guess strategic choices." United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (quotations omitted). In other words, the Court must not become a "Monday morning quarterback." Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990). With regards to the second prong of Strickland, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Fountain, 211 F.3d at 434; Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir. 2006). "A reasonable probability is defined as one that is sufficient to undermine confidence in an outcome." Adams, 453 F.3d at 435 (citing Strickland, 466 U.S. at 694).
A. Government's Defense: Untimely § 2255 Motion The Court first considers the government's timeliness defense. In its response, the government initially asserts that Cooper's § 2255 motion was not timely filed under the one year period of limitation from the date Cooper's judgment of conviction became final. The government notes that the Supreme Court denied Cooper's petition for writ of certiorari on February 25, 2008. Cooper, 552 U.S. 1232. Thus, his § 2255 motion was due on February 25, 2009, but was not filed until March 2, 2009. The government further contends that while it appears that Cooper desired to avail himself of the mailbox rule by declaring in his § 2255 motion that he placed his motion in the prison mailing system on February 24, 2009, it does not appear he met the further requirement of stating that first-class postage had been prepaid. See United States v. Craig, 368 F.3d 738, 740 (7th Cir. 2004). This spurred Cooper to file a partial reply to the government's response, attaching a signed declaration indicating that he gave prison authorities his § 2255 motion on February 24, 2009, with sufficient prepaid first-class postage. He also attached a certified mail receipt ...