The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Petitioner Allen Robinson filed this pro se Motion to Vacate, Set Aside or Correct his Sentence pursuant to 28 U.S.C. § 2255. Robinson alleges ineffective assistance of counsel claiming that his attorney failed to raise certain issues on appeal. For the following reasons, Robinson's Motion is denied.
On September 1, 2009, under the advice of counsel, Robinson entered into a blind guilty plea to one count of bank fraud pursuant to18 U.S.C. § 1344, and three counts of wire fraud pursuant to 18 U.S.C. § 1341 as part of a large mortgage fraud scheme. See United States v. Brown et al., 08 CR 452‐10 (N.D. Ill. Sept. 1, 2009) (Case No. 08 CR 452‐10, Doc. 156). Consistent with his plea, Robinson's sentence would be determined at a subsequent hearing following the submission by the parties of their views on the appropriate Sentencing Guidelines calculations. (Case No. 08 CR 452‐10, Tr. 9/1/2009 P.M. pg. 11, 14).
At Robinson's sentencing hearing held on March 11, 2011, his attorney contested certain sentencing enhancements proposed by the United States and supported in the Probation Officer's report based on the number of victims that were reasonably foreseeable as a result of Robinsonʹs actions and the sophisticated means by which Robinson participated in the scheme. (Case No. 08 CR 452‐10, Doc. 608, Tr. 3/11/2011 P.M. pg. 6‐8, 31).
At sentencing, this Court rejected Robinson's objections to the proposed enhancements, but credited his acceptance of responsibility, his efforts to assist law enforcement, and his expression of remorse for committing his crimes. (Case No. 08 CR 452‐10, Doc. 608, Tr. 3/11/2011 P.M. pg. 43‐48). After applying the enhancements and then taking into account the mitigating factors, the Court imposed a sentence of 60 months imprisonment on each count, to run concurrently -- a deviation from the proposed sentencing Guidelines range of at least 18 months and potentially as high as three years. (Case No. 08 CR 452‐10, Doc. 608, Tr. 3/11/2011 P.M. pg. 48) (the proposed sentencing Guidelines range after the Court's finding of enhancements was 78‐97 months). At the conclusion of the sentencing hearing, Robinson was advised by the Court of his right to appeal his sentence within fourteen days of the entry of the Judgment and Commitment Order. (Case No. 08 CR 452‐10, Doc. 608, Tr. 3/11/2011 P.M. pg. 49). The Judgment and Commitment Order was docketed on March 24, 2011. Robinson did not file a notice of appeal within the following fourteen days, and therefore the judgment became final on April 7, 2011.
Section 2255 allows a federal prisoner to move the district court that imposed his sentence to vacate it, set it aside or correct it. See 28 U.S.C. § 2255. Such a motion seeks "an extraordinary remedy because it asks the district court essentially 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 may be granted "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 citations and quotations omitted).
Due to the extraordinary nature of the requested remedy, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Thus, "[o]nly when the district court has determined that the § 2255 motion ought not be dismissed at that early stage does the district court have occasion to determine whether an evidentiary hearing is required." Almonacid, 476 F.3d at 521 (citing Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts).
Pursuant to 28 U.S.C. § 2241, why are we jumping to 2241? Did he file a 225 or a 2241? If he brought a 2241, then it must be analyzed under that statute a prisoner claiming that "[h]e is in custody in violation of the Constitution or laws or treaties of the United States" may petition the court for a writ of habeas corpus. See 28 U.S.C. § 2241(c)(3). A prisoner's right to bring a § 2241 petition to attack a conviction or sentence is limited. See Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). In general, § 2255 is the "exclusive means for a federal prisoner to attack his conviction" and a prisoner may only "proceed under § 2241. . . in those cases where § 2255 is 'inadequate or ineffective to test the legality of [the] detention.'" Id. (quoting 28 U.S.C. § 2255(e)).
Robinson's Motion and the supporting memoranda he submitted to this Court claims ineffective assistance of counsel in violation of the Sixth Amendment. To prevail, Robinson must demonstrate: "(1) that his attorney's performance fell below an objective standard of reasonableness and (2) that the attorney's deficient performance prejudiced the defendant such that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 688 (1984)) (internal quotations omitted).
Robinson identifies two alleged errors in his representation. First, he claims that his attorney failed to file a notice of appeal following his sentencing on March 11, 2011 and did not consult with him regarding what his views were regarding potential avenues for appeal. Robinson also alleges that his attorney failed to adequately challenge the two sentencing enhancements that the Court applied at the time of sentencing: the number of victims enhancement and the sophisticated means enhancement.
With regard to his failure to appeal, although he now alleges that there were "several" issues warranting an appeal, Robinson has failed to demonstrate that he clearly instructed his attorney to pursue these avenues before the judgment became final. In his own pleadings, Robinson undermines his argument because he states that his attorney "advised him not to appeal." (Doc. 11, pg. 5.) Of course, if his attorney advised him not to appeal, Robinson cannot now claim that he never consulted with Robinson about the appeal. Clearly by his own admission, a discussion took place regarding whether to appeal, and his attorney advised against it. In an affidavit submitted by the government, Robinson's attorney confirms that he and Robinson discussed the possibility of appeal following Robinson's sentence. Robinson's attorney states that, following the sentencing, he "talked to Robinson outside the courtroom and advised him about his right to appeal within 14 days." (Doc. 9‐1, Affidavit of John Lyke, ¶ 10). He states further that Robinson "told me that he wanted to think about it and would call me and let me know whether he wanted to appeal." (Id.) Based on Robinson's representations and his subsequent failure to contact his attorney regarding an appeal, his attorney did not file a notice of appeal within the requisite 14 days. (Id.) After the judgment became final, Robinson ...