The opinion of the court was delivered by: Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
This case comes before the Court on movant Richardson's motion to correct or vacate his sentence pursuant to 28 U.S.C. §2255. Based on his trial counsel's performance, Richardson raises several claims of ineffective assistance of counsel. Richardson retained Phillip Turner two years prior to his conviction. Richardson's ineffective assistance of counsel claims are encompassed in three basic claims: (1) that Turner failed to adequately counsel him on whether to plead guilty or go to trial; (2) that Turner failed to file a motion for serverance/misjoinder; and (3) that Turner moved to withdraw as counsel three days before deadline for filing post-trial motions. In his supplemental brief, counsel appointed for Richardson focused on the first and third claims. For the reasons that follow, Richardson's motion is denied.
The factual background has been taken from the Seventh Circuit's opinion in the direct appeal of this matter. U.S. v. Ghilarducci, 480 F.3d 542 (7th Cir. 2007)(J. Williams). Richardson and his co-defendant, August C. Ghilarducci, were convicted for inter alia engaging in a confirmation of funds scheme. Ghilarducci was president and owner of Westchester Financial Associates, Inc. ("WFA") and executed a series of deals, sometimes with Richardson's assistance, in which they charged WFA clients fees for procuring Confirmation of Funds ("COF") letters from financial institutions. The letters purported to show that financial institutions could lease large sums of money to WFA clients for a short period of time. The leased funds would then be used in trading programs to generate profits. Richardson marketed the letters and Ghilarducci executed the documents with WFA clients. Over $22 million in fees was paid by several dozen clients. WFA clients testified at trial that they relied on the oral representations of both Richardson and Ghilarducci that COF deals had been successful in the past and future deals would also yield high returns. Richardson promised to introduce WFA clients to trading programs that he had found reliable. WFA clients were also reassured by representations that fees would be deposited in an attorney's escrow account until the COF letter issued. A WFA attorney testified that he wired money out of the escrow account at Ghilarducci's request on multiple occasions. The COF letters were issued from foreign banks with questionable status. The COF letters proved to be worthless. In 1997, the Illinois Attorney General began an investigation. There was a second scheme tried simultaneously involving railroad bonds, in which Richardson's co-defendant, Ghilarducci, was also charged. Richardson was not involved in and not charged with the railroad bond scheme. Richardson was found guilty of racketeering, wire fraud, money laundering, and tax evasion and sentenced to 140 months in prison. On direct appeal, Richardson challenged the sufficiency of the evidence and the appellate court affirmed the conviction and sentence. U.S. v. Ghilarducci, 480 F.3d 542 (7th Cir. 2007), cert. denied, 552 U.S. 886 (2007).
Following his conviction, Richardson assisted the government in an unrelated prosecution. The government offered to submit a motion to the sentencing judge pursuant to Federal Rule of Criminal Procedure 35(b), asking the judge to reduce the length of Richardson's sentence by 15 percent. The government's offer was contingent on Richardson withdrawing his direct appeal. Richardson refused to withdraw the appeal of his conviction and thereafter filed his own Rule 35(b) asserting that the government's refusal to file such a motion on his behalf had been unreasonable. After the Seventh Circuit affirmed Richardson's conviction, the district court dismissed Richardson's Rule 35(b) motion for lack of jurisdiction. Richardson appealed the dismissal of his Rule 35(b) motion and the Seventh Circuit affirmed. U.S. v. Richardson, 558 F.3d 680 (7th Cir. 2009).
Shortly before Richardson filed his appeal of Judge Coar's denial of his Rule 35(b) motion, Richardson filed the section 2255 motion now pending before the court. Judge Coar stayed the section 2255 motion pending resolution of Richardson's appeal on the Rule 35(b) issue. After the Seventh Circuit affirmed the denial of his Rule 35(b) motion, Judge Coar dismissed the section 2255 motion for lack of jurisdiction, interpreting the motion as a second collateral attack. The Seventh Circuit reversed, U.S. v. Richardson, No. 10-2391 (7th Cir. March 11, 2011), and remanded to the district court to consider the merits of Richardson's section 2255 motion. It was assigned to this Court's calendar upon Judge Coar's retirement. This Court appointed counsel to assist Richardson and allowed a supplemental filing by counsel. Currently before the Court is Richardson's original section 2255 motion as supplemented by his court appointed attorney.
1. Failure to Adequately Counsel on Decision to Accept or Reject a Plea Richardson argues that several aspects of Turner's representation at trial were deficient. He first argues that Turner said repeatedly that he could defeat the government at trial and that this statement was based on a failure to adequately prepare for trial and a lack of recognition of the strength of the government's case. Richardson also argues that the government stated they would add RICO charges if he did not agree to plead guilty and that Turner did not adequately advise him of the consequences of rejecting the government's offer. Additionally, Richardson asserts that Turner should have known the government's evidence was "overwhelming" as the government now contends and that Turner should have convinced him to plead guilty. Richardson further argues that he wanted to testify on his own behalf, but that Turner advised against it because "he had won the case."
The government presents Turner's affidavit in which he states that he was acting on his client's wishes by rejecting the government's offer of a plea agreement. Turner avers that Richardson proclaimed his innocence throughout the trial and thus Turner believed Richardson would not have accepted pleading guilty. Turner further states that he tried to interview several people with information connected with the case, but many were represented by counsel and refused to talk to him. Judge Coar also denied several of Turner's requests to subpoena documents from third-parties.
2. Failure to File a Motion for an Evidentiary Hearing on Joinder/Severance Richardson essentially argues that severance "should have been granted". Richardson argues that he was prejudiced by being tried as a co-defendant with Ghilarducci because the government presented twenty-seven witnesses solely against Ghilarducci and Richardson was not involved at all with the railroad bonds. Richardson also argues that Turner failed to investigate witnesses and failed to discover that Ghilarducci would confess to withdrawing money from the escrow accounts. Turner attests that he filed two motions to sever that were denied by the Court. Turner also asserts that he moved for a limiting instruction, which the Court gave, informing the jury that certain witness provided testimony unrelated to the charges against Richardson.
Richardson further claims that Turner failed to effectively cross-examine witnesses including attorney for WFA, Grippo, who is also the basis for Richardson' Brady violation claim. Richardson contends that Grippo represented the government in a case and that it did not disclose that information even though Grippo was a key witness in the Richardson/Ghilarducci trial. The government responds that the case which Richardson cites post-dates Richardson's trial and the firm of Grippo & Elden acted as private retained counsel for one Assistant U.S. Attorney and did not represent the "government". See In re United States, 398 F.3d 615 (7th Cir. 2005).
3. Counsel Withdrew his Representation Three Days before Post-Trial Motion Deadline Richardson argues that Turner abandoned him at a critical stage of the case when he filed a motion to withdraw as counsel and moved for an extension of time to file post-trial motions, when he should have known that Judge Coar did not have the authority to grant an extension beyond seven days after the conviction. Turner responds that he filed the motion to withdraw because Richardson threatened to file a complaint with the disciplinary board. Richardson admits that he told Turner that he would lodge a complaint against him, but contends it was not a threat and thus should not have been a basis for withdrawal. Turner also states that he had preserved through objections in the trial record, any potential issues for review.
Section 2255 states that: "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. §2255.
The standard for evaluating an ineffective assistance of counsel claim is well established. In order to prevail, the petitioner must show: (1) that his attorney's performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for his counsel's errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "There is a strong presumption that any decisions by counsel fall within a wide range of reasonable trial strategies." Valenzuela v. United States, 261 F.3d 694, 698-99 (7th Cir. 2001). ...