The opinion of the court was delivered by: Charles P. Kocoras, District Judge:
This matter is before the Court on a petition for a writ of habeas corpus by William B. Allen ("Allen") under 28 U.S.C. 2255. For the foregoing reasons, Allen's petition is denied.
On December 10, 2008, a jury convicted Allen for advertising, transporting, and possessing child pornography in violation of 18 U.S.C. 2251(d)(1)(A), 2252A(a)(1), and 2252A(a)(5)(B), respectively. It was his first child exploitation conviction. Prior to sentencing, the probation officer prepared a Pre-sentence Investigation Report ("PIR") calculating the sentencing guidelines' range of imprisonment, including the following enhancements:
§ 2G2.2(b)(2) (involving prepubescent minors); § 2G2.2(b)(3) (distribution with expectation of receipt of something of value); § 2G2.2(b)(4) (depictions of violence); § 2G2.2(b)(6) (use of a computer); and § 2G2.2(b)(7) (600 or more images) ("2G2 enhancements"). The 2G2 enhancements doubled Allen's minimum guideline sentence, from 15 years in prison, see 81 U.S.C. § 2251(e), to 30 years.
Before Allen's sentencing hearing, his trial counsel ("trial counsel") submitted a sentencing memorandum asking the Court to impose a below-guideline sentence of 15 years. Trial counsel pointed out that the Court was free to use its discretion to fashion a below-guideline sentence under Booker v. Washington, 543 U.S. 220 (2005), and that the primary purpose of the sentencing factors under 18 U.S.C. 3553(a) "is for sentencing courts to impose a sentence sufficient, but not greater than necessary . . . ." Trial counsel alerted the Court to the fact that the 2G2 enhancements have been amended "on several occasions over the past twenty years" to punish child pornography convicts more harshly. According to trial counsel, the 2G2 enhancements "do not appear to be based on any sort of empirical data, and defense counsel has been unable to locate any particular rationale for them beyond the general revulsion that is associated or attached with Child Pornography cases." Trial counsel requested that this Court give the 2G2 enhancements less deference than if the guidelines were supported by empirical study.
On June 9, 2009, at the sentencing hearing, the Court accepted the
probation officer's guideline calculation which included the 2G2
enhancements. Both the government and trial counsel agreed with the
calculation. Prior to its statement, the government directed the
Court's attention to a case the Seventh Circuit had recently decided,
United States v. Huffstatler, 561 F.3d 694 (7th Cir. 2009).*fn1
According to the government, the Court of Appeals "dispensed
with [the] argument" that the guidelines pertaining to child
exploitation offenses are deficient because they are not based on
empirical data. During trial counsel's remarks, he again requested a
below-guideline 15-year sentence, and echoed many of the same
sentiments in his sentencing memorandum. He noted that "there was no
consultation with the Sentencing Commission" and that "[t]here was no
science invoked" in promulgating the 2G2 enhancements. Trial counsel
condemned the "draconian" sentences under the enhancements, saying
that "[t]hey should shake you and shake us to the core."
In light of trial counsel's arguments for a below-guideline sentence, the Court observed that there were instances in which it sometimes "struggled with Guideline numbers and calculations." To wit, the Court assured that it did "not have blind allegiance in the correctness of Guideline calculations," and "would, in a heartbeat, climb off the ladder of Guideline calculations if I thought it was the right thing to do . . . ." However, the Court stated "that is not this case and it is not a consideration in this case" due to the nature of the crimes under which Allen was convicted and the need to deter other like-minded individuals. The Court sentenced Allen to 30 years in prison, noting that it did "not have a reason to depart from these Guidelines." *fn2
Allen timely appealed his conviction to the Seventh Circuit Court of Appeals, asserting that this Court erred in allowing a particular juror to sit on the jury, and that the Court incorrectly admitted into evidence certain internet chat logs. Allen did not challenge the constitutionality of the child pornography sentencing guidelines. The Seventh Circuit panel affirmed Allen's convictions. United States v. Allen, 605 F.3d 461 (7th Cir. 2010). Allen's subsequent petition for writ of certiorari to the Supreme Court was denied. Allen v. United States, 131 S. Ct. 1475 (2011).
Allen now petitions this Court for habeas corpus relief under 28 U.S.C. 2255 and requests an evidentiary hearing so that the Court may consider the merits of his claims. He asserts that he is entitled to relief because: (1) his rights under the Sixth Amendment were violated by ineffective trial and appellate counsel, and (2) his sentence is grossly disproportionate to the crime for which he was convicted, contrary to the Eighth Amendment's prohibition against cruel and unusual punishment.
Section 2255 permits a prisoner to request the sentencing court to vacate, set aside, or correct a sentence after direct review if the sentence was imposed in violation of the Constitution or laws of the United States. 28 U.S.C. § 2255. It is an extraordinary remedy because it asks the district court 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). Relief is appropriate only for "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal citation omitted). In considering a habeas petition, the 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).
Allen argues that he is entitled to relief on three independent grounds. First, he contends that his trial counsel provided ineffective assistance of counsel under the Sixth Amendment for not disputing the provenance of the 2G2 enhancements as applied to his sentence. Second, he asserts that his appellate counsel ("appellate counsel") provided ineffective assistance of counsel for failing to appeal the sentence by challenging the 2G2 enhancements. Third, Allen argues that the sentence enhancements constitute cruel and unusual ...