The opinion of the court was delivered by: Murphy, District Judge:
This matter is before the Court on Petitioner Tabitha Robinson's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. Petitioner's motion is based primarily on a claim of ineffective assistance of counsel during plea negotiations. The Government responded to the Petitioner's motion as ordered by this Court. For the reasons set forth below, the Petitioner's motion is denied.
On October 28, 2008, Ms. Robinson was arrested and charged with conspiracy to produce child pornography, in violation of 18 U.S.C. § 2251(a) and (e), and conspiracy to transport minors with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a). According to the Factual Stipulation signed by Ms. Robinson, she brought "Jane Doe 3," a minor in her custody, to a hotel in Terre Haute, Indiana in August 2008 to participate in sexual acts with co-defendants, William Milligan and Louise Helen Masulla. "Jane Doe 11," who was in the custody of Ms. Masulla, was also present. During the encounter, Mr. Milligan and Ms. Masulla performed oral sex on both Jane Doe 3 and Jane Doe 11. Mr. Milligan attempted vaginal sex with Jane Doe 11. The defendants took photographs of the encounter, including illicit photos of the two minors, which Ms. Robinson later downloaded on her computer and sent to Ms. Masulla via email.
Ms. Robinson was indicted by a grand jury on the two aforementioned counts on November 4, 2008. The Court determined Ms. Robinson was indigent and appointed attorney Robert Herman as her representation.
On April 1, 2009, Ms. Robinson entered into a plea agreement with the Government and pleaded guilty. The plea agreement contained an appellate waiver. Magistrate Judge Donald G. Wilkerson accepted Ms. Robinson's plea of guilty, ruling the pleas to each count were made knowingly and voluntarily.
Ms. Robinson appeared for her sentencing on August 3, 2009. The United States, represented by Assistant United States Attorney Suzanne Garrison, recommended a sentence of 260 months imprisonment followed by a lifetime term of supervised release. The Court, however, gave Ms. Robinson a life sentence, which was on the high-end of the guideline range. Ms. Robinson filed a notice of appeal.
On August 26, 2009, the United States moved to dismiss the appeal because Ms. Robinson waived her appellate rights in the plea agreement. While this issue was pending, Mr. Herman filed a motion to withdraw as Ms. Robinson's appointed counsel, which the Court granted. The Court appointed Chief Federal Defender Richard H. Parsons as Mr. Herman's replacement.
On January 26, 2010, under the advice of Mr. Parsons, Ms. Robinson voluntarily dismissed her appeal under Federal Rule of Appellate Procedure 42(b). Ms. Robinson then filed a timely motion pursuant to 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel. The Court directed the Government to respond to Ms. Robinson's motion, and the Government filed its response on September 10, 2010. Ms. Robinson filed a rebuttal to the Government's response on November 8, 2010.
Although the plea agreement between Ms. Robinson and the Government stipulates Ms. Robinson knowingly and voluntarily waived her right to contest her conviction and sentence under Titles 18 and 28, Ms. Robinson now contends her guilty plea was not made knowingly and voluntarily. Ms. Robinson claims Mr. Herman was ineffective in the following four ways: (1) provided inadequate counsel during plea negotiations; (2) failed to suppress Ms. Robinson's statements to investigators; (3) neglected to conduct a pretrial investigation; and (4) did not pursue a mental defense.
A 28 U.S.C. § 2255 motion does not mandate an evidentiary hearing. Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996); see also Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001). "[A] district court must grant an evidentiary hearing when the petitioner alleges facts that, if proven, would entitle him to relief." Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006) (emphasis in original) (internal quotations omitted). However, if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief" then a hearing is not required. Id. Allegations that are "vague, conclusory, or palpably incredible rather than detailed and specific" do not warrant a hearing. Bruce, 256 F.3d at 597. Likewise, "mere speculation" does not warrant an evidentiary hearing, as the petitioner "must file a detailed and specific affidavit showing he has actual proof of allegations he is making." Miller v. United States, 183 Fed. Appx. 571, 578 (7th Cir. 2006). For evidentiary hearing consideration, the Seventh Circuit requires a petition made pursuant to 28 U.S.C. § 2255 to "include an affidavit setting forth the specific basis for relief." Kafo, 467 F.3d at 1067. An affidavit accompanying the petition is a threshold requirement -- "its absence precludes the necessity of a hearing." Id. The specific allegations in the petition and accompanying affidavit must go beyond merely unsupported assertions, as "[m]ere unsupported allegations cannot sustain a petitioner's request for a hearing. Prewitt, 83 F.3d at 819.
Ms. Robinson's § 2255 motion does not specifically request an evidentiary hearing, nor is such a hearing warranted. Though Ms. Robinson provides an affidavit to meet the threshold requirement for a hearing, she alleges no facts in her petition or supporting affidavit, that if true, would entitle her to § 2255 relief. The Court's careful review of the motion, files, and records leads the Court to conclude an evidentiary hearing is not required in this case. The Court will resolve the motion without a hearing.
1.Collateral Review Under 28 U.S.C. § 2255
Section 2255 requires the court to vacate, set aside, or correct the sentence of a prisoner in custody if it finds that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by the law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. "Habeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Kafo, 467 F.3d at 1068, quoting Prewitt, 83 F.3d at 816. There are "significant procedural hurdles" to consideration of a petitioner's habeas claim. Bousely v. United States, 523 U.S. 614, 615 (1998). Collateral relief is appropriate only when the error is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997). Habeas relief through a § 2255 motion is not a substitute for direct appeal. Fountain v. United States, 211 F.3d 429, 433. A § 2255 motion: cannot raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal.
Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) (emphasis in original) (overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994)).
The Supreme Court, however, has held "that an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003). In fact, "ineffective assistance claims are generally best addressed through a motion in collateral proceeding pursuant to § 2255 because 'the trial record is not developed precisely for the object of litigating or preserving the claim. [and] in many cases will not disclose the facts necessary to decide either prong of the Strickland analysis.'" Cooper v. United States, 378 F.3d 638, 641 (7th Cir. 2004) (quoting Massaro, 538 U.S. at 505). Thus, the procedural restrictions outlined in Belford cannot bar a § 2255 claim based on ineffective assistance of counsel. Ms. Robinson's reasons for her petition for habeas relief pursuant to § 2255 are couched as ineffective assistance of counsel claims.
2.Ineffective Assistance of Counsel
The heavy burden of showing ineffective assistance of counsel rests squarely on the shoulders of the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). The court's review of an attorney's conduct "is 'highly deferential,' with the underlying assumption that 'counsel's conduct falls within the wide range of reasonable professional assistance.'" United States v. Holman, 314 F.3d 837, 840 (7th Cir. 2002) (quoting Strickland, 466 U.S. at 689).
When evaluating a § 2255 motion claiming ineffective assistance of counsel, a court will apply the two-prong Strickland test. McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir. 2007) (citing Strickland, 466 U.S. at 668, 690, 694). The first prong requires the petitioner to demonstrate that her counsel's performance was deficient. Strickland, 466 U.S. at 687. For a counsel's performance to be considered deficient, the petitioner must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the [petitioner] by the Sixth Amendment." Id. The second prong of Strickland requires the petitioner to show that her counsel's deficient performance prejudiced the defense. Id. The petitioner "must show that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Importantly, a court does not need to analyze both prongs of the test, as a petitioner's failure to satisfy either prong is sufficient to defeat her claim. Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993) (citing United States v. Slaughter, 900 F.2d 1119, 1124 (7th Cir. 1990)). Furthermore, the petitioner must provide objective evidence in support of her claim. Strickland, 466 U.S. at 687--88.
3.Waiver of Appellate and Collateral Attack Rights
Here, the plea agreement contains a waiver of appellate and collateral attack rights. Such a waiver "will be enforced if: (1) its terms are clear and unambiguous; and (2) the record demonstrates that it was entered into 'knowingly and voluntarily.'" United States v. Jemison, 237 F.3d 911, 917 (7th Cir. 2001) (citing Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1999)). The United States Court of Appeals for the Seventh Circuit has stated that "a careful plea colloquy under Rule 11 [serves as evidence] that the guilty plea is knowing and voluntary." United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002). While Federal Rule of Criminal Procedure 11 requires the court to discuss with the defendant aspects of her guilty plea, "the court is not required to conduct a specific dialogue with the defendant concerning the appeal waiver, so long as the record contains sufficient evidence to determine whether the defendant's acceptance of the waiver was knowing and voluntary." Jones, 167 F.3d at 1144. The defendant's statements made during her plea colloquy are generally "accorded a 'presumption of verity.'" Schuh, 289 F.3d at 975 (quoting United States v. Pike, 211 F.3d 385, 389 (7th Cir. 2000)).
Although a valid appellate waiver may be binding in other respects, it does not preclude judicial review of a claim that the plea agreement itself was the product of ineffective counsel. Jones, 167 F.3d at 1144--45. If the defendant can demonstrate ineffective assistance of counsel with respect to the negotiation of the waiver, then the waiver is not effective against a § 2255 challenge. Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000). "Even an ineffective assistance claim cannot survive a waiver unless the claim relates specifically to the voluntariness of the waiver itself." Bridgeman v. United States, 229 F.3d 589, 593 (7th Cir. 2000). That is, ineffective assistance claims related to anything other than the plea negotiation -- related to counsel's performance at sentencing, for example -- are barred by an enforceable waiver. Id.; see also Jones, 167 F.3d at 1145 ("[W]e reiterate that waivers are enforceable as a general rule; the right to mount a collateral attack pursuant to § 2255 survives only with respect to those discrete claims which relate directly to the negotiation of the waiver."); United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir. 2000) (finding that when petitioner surrendered the right to challenge his sentence on any grounds in a voluntary plea agreement, he had no viable theory for appeal).
C.Ms. Robinson's Motion to Vacate, Set Aside, or Correct Sentence
Ms. Robinson attempts to circumvent restrictions on § 2255 collateral relief, procedural default, and the enforceability of the waiver in her plea agreement by couching her motion in terms of ineffective assistance of counsel during plea negotiations. Upon review, the appellate and collateral attack waiver in Ms. Robinson's plea agreement is enforceable. However, this otherwise enforceable waiver does not bar Ms. Robinson's claim of ineffective assistance of counsel because it directly relates to the plea negotiations. Therefore, the Court will analyze this specific claim on the merits. Ms. Robinson's claim fails under a Strickland ...