The opinion of the court was delivered by: Stiehl, District Judge:
Before the Court is petitioner's pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1), to which the government has filed a response (Doc. 9). Petitioner also filed a motion to supplement (Doc. 7) which this Court construed as a motion to amend, and granted (Doc. 8), and the arguments contained in the supplement are considered in this Order. Additionally, petitioner has filed second and third motions to amend his § 2255 petition (Docs. 11, 12), to which the government has not filed a response.
On January 13, 2006, petitioner pleaded guilty without a plea agreement to conspiracy to distribute and possess with the intent to distribute at least 12,000 doses of MDMA (a drug commonly known as "Ecstasy"), in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. Prior to sentencing, petitioner's attorney moved to exclude the Presentence Investigation Report ("PSR") and testimony concerning petitioner's criminal history and other criminal activities from the sentencing proceeding. He argued that this evidence was hearsay and that its use would violate petitioner's rights under the Confrontation Clause. The district court denied this motion and considered the evidence at sentencing. United States v. Torres, Criminal No. 04-30154-WDS, 2006 WL 1388741 (S.D. Ill. May 15, 2006). On May 17, 2006, this Court sentenced petitioner to 235 months of imprisonment, a sentence at the bottom of the applicable advisory Guidelines Range. This sentence was affirmed on appeal. United States v. Torres, 217 F.App'x 540, 544 (7th Cir. 2007).*fn1 Petitioner's petition for writ of certiorari was denied by the Supreme Court on October 1, 2007. Torres v. United States, 552 U.S. 849 (2007).
In his petition for relief pursuant to § 2255 (Docs. 1, 2), petitioner argues that his Sixth Amendment right to effective assistance of counsel was violated because his counsel (1) failed to adequately inform him of the immediate consequences of his guilty plea, rendering his plea involuntary, (2) failed to introduce evidence to refute sentencing enhancements, namely, that petitioner used or attempted to use persons under eighteen years of age in the commission of the offense of conviction, and that petitioner threatened or attempted to threaten witnesses. In petitioner's motion to supplement his initial petition (Doc. 7), granted by this Court (Doc. 8), petitioner asserts additional ineffective assistance claims, including (3) petitioner's attorney failed to seek a plea agreement; (4) counsel failed both prior to and after the plea, to explain what would be used to enhance his sentence; (5) that counsel erroneously told petitioner that he could not withdraw his guilty plea, even though petitioner asked counsel to do so.
Petitioner's pending request to amend his § 2255 petition (Doc. 11) includes allegations that (1) the Court did not clearly or adequately explain "waiver" of constitutional rights with respect to his plea, during the plea colloquy; (2) the Court did not clearly explain "waiver" with respect to sentencing; (3) counsel was ineffective by making an agreement with the government to waive the right to confront witnesses or present witnesses at the sentencing hearing; (4) counsel mislead him that hearsay statements by government witnesses would not increase his sentence of 120 months under the Federal Sentencing Guidelines; (5) counsel violated the American Bar Association's Model Code of Professional Responsibility (1983), specifically, Ethical Code EC 7-7, which provides that a defense attorney in a criminal case has a duty to advise his client fully regarding whether a plea to a particular charge appears desirable, and as to the prospects of success on appeal, but the client ultimately decides what plea should be entered and whether an appeal should be taken; (6) counsel was ineffective by failing to subpoena an expert witness to verify the drug amount used to increase his base offense level; (7) counsel was ineffective by failing to subpoena an expert to verify his mental capacity as borderline retarded and incapable of the mental state required to receive enhancements for the use of juveniles and threats upon a witness, possessing weapons, and distribution of a large amount of drugs, and (8) appellate counsel was ineffective for failing to raise each of these claims on direct appeal.
In petitioner's most recent motion to amend (Doc. 12), petitioner seeks to include claims based on (1) the alleged erroneous calculation of his criminal history category in the PSR; and
(2) ineffective assistance of counsel based on counsel's failure to object to the calculation of his criminal history category at sentencing.
As an initial matter, the Court must determine which of these claims it may consider.
The relevant statute of limitations requires that a § 2255 motion be filed within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). "[A] direct appeal is "final" when the Supreme Court 'affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Gildon v. Bowen, 384 F.3d 883, 885 (7th Cir. 2004) (quoting Clay v. United States, 537 U.S. 522, 527 (2003)).
Petitioner filed a petition for a writ of certiorari, which was denied on October 1, 2007. Therefore, the deadline for filing a § 2255 motion was October 1, 2008. Petitioner filed his original § 2255 motion by placing it into the prison mailing system on October 1, 2008. Petitioner, however, has since filed three motions to amend outside of this time limit, on August 13, 2009, (Doc. 7), on October 18, 2010 (Doc. 11), and on November 10, 2011 (Doc. 12). The Court previously granted petitioner's first motion (Doc. 8), and will therefore consider all issues submitted therein. However, upon consideration of petitioner's recent motions to amend (Docs. 11, 12), the Court must dismiss some of the claims therein.
Amendments to habeas petitions may be filed outside of the one year time limit when "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original" motion. Fed. R. Civ. P. 15(c)(1)(B). Any new claim made in an amended petition must be "tied to a common core of operative facts" with a claim in the original petition. Mayle v. Felix, 545 U.S. 644, 664 (2005). Based on this principle, some of the claims in the motions to amend (Docs. 11, 12) are time-barred.
In his initial petition, petitioner claims, in general terms, ineffective assistance based upon failure to inform him of the consequences of a guilty plea, and failure to introduce evidence to refute sentencing enhancements. In his first request to amend, petitioner raises additional ineffective assistance claims based upon counsel's failure to seek a plea agreement, failure to explain what could be used to enhance his sentence, and counsel's advice that petitioner could not withdraw his guilty plea. In petitioner's pending requests to amend, however, he raises new, unrelated issues, including claims that the Court did not adequately explain waiver during the plea colloquy with respect to his plea and sentencing, and that appellate counsel was ineffective for failing to raise particular claims on appeal. None of the facts alleged in these claims relate "in both time and type [to] those the original pleading set forth," Mayle, 545 U.S. at 650, but are based on entirely different facts. Therefore, the first, second, and eighth claims raised in the motion to amend (Doc. 11) are untimely, and their merits will not be considered.*fn2 The Court, accordingly, DENIES IN PART, petitioner's motion to amend (Doc. 11), as the claims based upon the Court's explanation of waiver during the plea colloquy, the Court's explanation of waiver regarding sentencing, and the performance of appellate counsel, are time barred.
Construing petitioner's motion to amend broadly,*fn3 all of the other claims raised in petitioner's motion to amend (Doc. 11) generally relate back to the claims raised in his original petition. Specifically, petitioner's claims that counsel mislead him regarding hearsay statements used to enhance his sentence, counsel violated the Model Code of Responsibility by failing to advise petitioner fully regarding his plea, counsel was ineffective for failing to subpoena an expert witness to verify the drug amount used to increase his base offense level, and counsel was ineffective by failing to subpoena an expert to verify petitioner's mental capacity, all relate in both time and type to petitioner's original claims of ineffective assistance raised in his original petition. Accordingly, petitioner's motion to amend (Doc. 11) is GRANTED IN PART, only to the extent that it relates back to petitioner's initial petition. In sum, the Court will consider petitioner's third through seventh claims raised in the motion to amend (Doc. 11) on their merits, and all other claims are time barred.
In petitioner's most recent motion to amend (Doc. 12), petitioner seeks to include claims based on (1) the alleged erroneous calculation of his criminal history category in the PSR; and
(2) ineffective assistance of counsel based on counsel's failure to object to the calculation of his criminal history category at sentencing. Petitioner's argument with respect to his criminal history calculation, or the Court's determination of the application of the guidelines should have been raised on appeal at the time petitioner challenged his sentence in other respects. He did not raise this issue on appeal, and has presented no reason why he could not do so, and it is therefore procedurally defaulted. See Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997); Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Furthermore, petitioner's argument that counsel was ineffective for failure to object to the criminal history calculation in the PSR was not timely raised in this proceeding, and does not relate back to petitioner's timely claims. Accordingly, the Court DENIES petitioner's third motion to amend (Doc. 12).
Additionally, in his initial petition, petitioner requests a hearing regarding his motion pursuant to 28 U.S.C. § 2255. Because summary dismissal of a § 2255 motion is appropriate when the motion and the files and records of the case conclusively demonstrate that the petitioner is not entitled to relief, this Court FINDS that it is unnecessary to hold a hearing. 28 U.S.C. § 2255(b) (2010), see also, Politte v. United States, 852 F.2d 924, 931 (7th Cir. 1988).
The Sixth Amendment guarantees criminal defendants the right to assistance of counsel, which has long been interpreted as a "right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). Claims of ineffective assistance of counsel are analyzed according to Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove ineffective assistance of counsel, petitioner must show that: (1) counsel's representation fell below an objective standard of reasonableness (the performance prong); and (2) there is a reasonable probability that, but for counsel's professional error, the result of the proceeding would have been different (the prejudice prong). See Strickland, 466 U.S. at 694; see also Brown v. Finnan, 598 F.3d 416, 419 (7th Cir. 2010).
A court does not have to analyze both prongs of the Strickland test. A defendant's failure to satisfy either prong is fatal to his claim. As such, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed."
Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993) (internal citations omitted) (quoting Strickland, 466 U.S. at 697).
A court's review of an attorney's performance is highly deferential. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). "There is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Id. (quoting Strickland, 466 U.S. at 689).Thus, to establish that counsel's conduct was deficient, the "defendant must overcome the presumptions that counsel's conduct amounted to sound trial strategy, and that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." United States v. Payne, 741 F.2d 887, 891 (7th Cir. 1984) (internal citations and quotation omitted). "The 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 circumstances." Kimmelman,477 U.S. at 381. Petitioner bears a heavy burden in showing that his counsel was ineffective and that his defense was actually prejudiced. United States v. Holland, 992 F.2d 687, 691 (7th Cir. 1993).
The performance prong of the Strickland testfocuses on whether counsel's assistance was objectively unreasonable. See Hutchings v. United States, 618 F.3d 693, 696 (7th Cir. 2010). In order to meet the "performance" prong, petitioner "must establish specific acts or omissions of his counsel that constitute ineffective assistance. [The Court] then determine[s] whether these acts or omissions were made outside the wide range of professionally competent assistance." Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003). When alleging omissions, "it is not enough to criticize counsel for failing to take particular steps. Instead, one must also address what action counsel did take, and then evaluate [his] performance as a whole." Eckstein v. Kingston, 460 F.3d 844, 849 (7th Cir. 2006). This reasonableness standard is not meant "to second-guess counsel's strategic decisions or 'take up the role of the Monday morning quarterback.'" United States v. Recendiz, 557 F.3d 511, 531 (7th Cir. 2009) (quoting Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990)). Instead, it is meant to ascertain "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.
The prejudice prong of the Strickland test focuses on whether counsel's poor representation deprived the petitioner of a fair proceeding. Lockhart v. Fretwell, 506 U.S. 364, 368-69 (1993). Under this prong, a petitioner must prove there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
"To establish prejudice in the pleading context, the petitioner must prove that there is a reasonable probability that he would not have pled guilty absent his attorney's deficient conduct." Hutchings, 618 F.3d at 697 (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). To make this showing, the defendant cannot merely assert that he would not have pled guilty but for counsel's errors, rather, the defendant must actually present objective evidence supporting this assertion. McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996).
Instead of considering petitioner's claims in the order he raised them, for the sake of both brevity and clarity, the Court will group petitioner's related claims and consider them together to the extent possible.
I. Claims of Ineffective Assistance With Respect to Petitioner's Decision to Plead Guilty
A. Counsel (1) Failed to Inform Petitioner of the Immediate Consequences of Pleading Guilty, Rendering the Plea Involuntary; and (2) was Ignorant of the Application of the Relevant Statutory Provisions and Guideline Provisions, Which Resulted in Counsel Erroneously Advising Petitioner to Plead Guilty.
Petitioner claims that counsel did not advise him that as a consequence of his plea, petitioner could be subject to certain sentencing enhancements based on statements of his co-conspirators. Petitioner asserts that, had he known this, he would have proceeded to trial because the government would have had to prove certain elements beyond a reasonable doubt, and he would have had the advantage of confronting and cross-examining his accusers.
Petitioner asserts that the motion filed by his attorney to exclude evidence presented by co-conspirators shows that his attorney was unaware of the applicable standards, and did not adequately advise him of the standards, rendering his plea involuntary.*fn4 In the motion petitioner refers to, counsel sought to bar consideration of hearsay statements at sentencing. The motion was denied by this Court, and petitioner asserts that the motion itself shows that counsel did not know that these statements could be used at sentencing, or that petitioner's only opportunity to confront his accusers was at trial.
Petitioner further asserts that he only plead guilty because counsel insisted that he would receive significantly less time (petitioner asserts counsel told him he would receive a sentence of 120 months) and it was the only way he could avoid the statutory maximum, and that his desire to proceed to trial is obvious by looking at the record of his criminal proceedings, but does not elaborate on how the record so shows.*fn5
"A reasonably competent lawyer will attempt to learn all of the relevant facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis to the client before allowing the client to plead guilty." Bethel v. United States, 458 F.3d 711, 717 (7th Cir. 2006). The Supreme Court has acknowledged that the decision to plead guilty involves many uncertainties: "[b]ecause many questions about the facts and how a court or jury will apply the law to those facts cannot be answered by counsel with certitude, '[w]aiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts.'" Id. (quoting McMann v. Richardson, 397 U.S. 759, 769-70 (1970)). Furthermore, while "a gross mischaracterization of the sentencing consequences of a plea may strongly indicate deficient performance, it is not proof of deficiency." Bethel, 458 F.3d at 717. The critical question for the Court to consider is "whether counsel undertook a good-faith effort to determine the applicable facts and estimate the sentence. An inaccurate prediction of a sentence alone is not enough to meet the standard." Id.
Petitioner asserts that counsel told him he would receive a three point reduction for acceptance of responsibility as a result of pleading guilty, but he, in fact, only received a two point reduction. He also asserts that his counsel "scared" him into pleading by telling him he could be subject to a much higher sentencing range unless he pled. Petitioner attempts to support his claim with a number of letters from counsel. The letters, however, indicate that counsel had adequately explained the process to petitioner (generally stating that plea agreements are negotiated with the prosecutors); explained what happens in an open plea ("the court can sentence you to anything" and generally explaining that an open plea is usually not advisable but can lead to a three point reduction for acceptance of responsibility); explained the probation officer's recommendation in comparison to their previous discussions (noting that they are very similar to each other); and that the sentencing range is below twenty years. (See Doc. 7). Counsel specifically stated:
Reflecting on my notes of our discussion on December 6, 2005, I told you
you could end up being an offense level 36 criminal history VI, which would have a range of 324 to 405 months. If you plead it would likely be a 32 category VI, which would be a range of 210 to 262 months. Again they have given you 2 points for acceptance of responsibility.
Again, as promised there are no enhancements filed by the government and your range is below 20 years. (Doc. 7 at 9, Ltr. dated March 20, 2006) (emphasis added). The language in this letter indicates that petitioner, in fact, received a sentence in line with what his counsel had advised would occur, should he decide to plead. In fact, counsel's lowest sentence estimate upon pleading noted in this letter is a sentence of 210 months, and the highest was 262 months. Petitioner's assertion that counsel advised him that he would receive a sentence of 120 months is directly refuted, in writing, in this letter from his attorney. Nowhere in the correspondence from counsel does it state that petitioner's sentence would likely be 120 months.
Moreover, the probation officer determined that petitioner had a base offense level of thirty, that he should receive a two level increase for the use of a weapon, a two level increase for the use of a juvenile, and a two level increase for threatening a potential witness/obstruction of justice, resulting in an offense level of thirty-six. The probation officer determined that petitioner was eligible for a two level decrease for acceptance of responsibility, leading to a final offense level of thirty-four, and a criminal history category of V. Finally, a statutory maximum of twenty years applied to petitioner, which resulted in a guideline range of ...