The opinion of the court was delivered by: Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
On August 28, 2008, Jerrod Sanders was convicted by a jury for knowingly possessing a firearm as a convicted of a felony. He was sentenced to term of 105 months' imprisonment. On July 23, 2010, the Court of Appeals for the Seventh Circuit affirmed Sanders' conviction and sentence. Sanders has now filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255, arguing that his attorney failed to take several steps in his defense, amounting to ineffective assistance of counsel in violation of his Sixth Amendment rights and warrants an order to vacate from this Court. For the reasons set forth below, Sanders' request is denied.
On July 14, 2007, Chicago police officers executed a search warrant at
a suspected drug house located at 5950 South Union in Chicago,
Illinois. Upon forcing entry to the home, the police performed a
protective sweep of the home and followed with a search. During their
search, the officers observed approximately 17 people using drugs and
alcohol. The police
proceeded to handcuff and then pat down in search of weapons the
people found inside the home. Petitioner, Jerrod Sanders, was in one
of the rooms searched by the police. When the officers entered that
room, they ordered all occupants to get on the floor. Instead of
moving to the floor pursuant to the officer's directions, Sanders
began to fumble with his hands. Officer Pendarvis, began to loudly
instruct Sanders to move to the floor. Upon giving Sanders multiple
instructions without success, Officer Pendarvis pulled Sanders to the
ground, handcuffed him and performed a search of his body. The body
search revealed a 9mm semi-automatic handgun in his front pants
The police arrested and transported Sanders and several others to a Chicago Police Station. Upon reviewing Sanders' rap sheet, Officer Pendarvis asked Sanders, "Oh, you were going to shoot me, huh?" apparently referencing Sanders' earlier refusal to move to the floor as the officer instructed. Sanders replied with words to the effect of, "No, I was trying to tell you that I had a gun." Officer Kocanda also spoke with Sanders the evening of his arrest and asked him about the gun. Sanders admitted that he bought the gun from someone for $50.
Sanders was indicted on one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Following a trial, the jury convicted Sanders and the court sentenced him to 105 months' imprisonment, a three-year term of supervised release, a $600 fine, and a $100 special assessment.
Sanders appealed his conviction arguing that the district court erred in limiting the testimony that he could elicit at trial relating to the sufficiency of Miranda warnings. Sanders also challenged the basis for the district court's application of a sentencing enhancement. The Seventh Circuit Court of Appeals rejected each of Sanders' arguments and affirmed his conviction on July 23, 2010. Now, Sanders moves this Court pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
Relief under 28 U.S.C. § 2255 is available only upon a showing that the district court imposed a sentence in violation of the Constitution or laws of the United States. Shell v. United States, 448 F.3d 951, 954 (7th Cir. 2006) (citing Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000)); Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Section 2255 "relief is appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). A district court may dismiss a motion filed pursuant to § 2255 without conducting a hearing if "the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief." Cooper v. United States, 378 F.3d 638, 641-42 (7th Cir. 2004).
Sanders asserts that his sentence should be vacated due to ineffective assistance of counsel. To establish such a claim, a petitioner must show that counsel's performance was so deficient that it fell below an objective standard of reasonableness and that his counsel's deficient performance prejudiced his defense. Strickland v. Washington. 466 U.S. 668, 687-88, 104 S.Ct 2052, 2064, 80 L.Ed. 2d 674 (1984). Judicial scrutiny of an attorney's performance is highly deferential, and the court indulges a strong presumption that such performance falls within the wide range of reasonable professional assistance. Id. at 689. The petitioner satisfies the prejudice prong by showing that counsel's errors were so serious as to deprive the petitioner a fair trial and that there exists a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 687, 694. Failure to prove either of the two prongs, deficient performance or sufficient prejudice, defeats the ineffectiveness claim. Id. at 700. The Court need not address petitioner's arguments on both prongs if petitioner's argument for one prong is clearly inadequate. Richardson v. United States, 379 F. 3d 485, 487-88 (7th Cir. 2004).
Sanders argues that his counsel was ineffective in several ways. He argues that his attorney (1) failed to inform him that a guilty plea would have led to at least a two-level U.S. Sentencing Guideline ("Guideline") reduction, (2) failed to argue that his sentence should have been decreased because Sanders was currently serving a state sentence when he was convicted of his federal offense, (3) admitted into evidence an affidavit that led to a two-level Guideline enhancement and (4) failed to call a single witness at Sander's suppression hearing. We will address each of Sanders' arguments in turn.
1. Failure to Inform Sanders of the Options Sanders first claims that his attorney failed to inform him about the potential to receive a Guideline benefit for acceptance of responsibility for pleading guilty. Sanders argues that a guilty plea would have resulted in at least a two-level Guideline reduction to his sentence resulting in a 57-71 month range as opposed to an 84-105 month range. When counsel's failure to inform a defendant of the option to plead guilty is the basis for a claim of ineffectiveness of counsel, the petitioner must show that there is a reasonable probability that but for the attorney's error, the petitioner would have pled guilty and not insisted on going to trial. United States v. Neely, 2001 WL 521841, *1, 7 (N.D. Ill. 2001) (citing Baker v. United States, 7 F.3d 629 (7th Cir. 1993) (petitioner seeking to vacate guilty plea must show reasonable probability that without counsel's errors he would not have plead guilty).
Sanders' petition and affidavit are devoid of any allegation that he would have pleaded guilty if he would have known about the potential availability of the acceptance of responsibility reduction. Sanders fails to provide the Court with any explanation of how, and to what degree knowledge of the availability of the acceptance of responsibility reduction would have affected his decision making process. See Neely, 2001 WL 521841 at 7. Moreover, even if Sanders would have pled guilty had he been aware of the acceptance of responsibility reduction, such a reduction is not automatic. United States v. Black, 636 F. 3d 898, 901 (7th Cir. 2011). The court is free to impose a reasonable sentencing decision in its own discretion. Therefore, even if Sanders had pled guilty, there is no guarantee that Sanders would have received any or all of the possible two-level reduction. At trial, the court had already determined that Sanders falsified his affidavit and was guilty of obstruction of justice. One who obstructs justice within the meaning of Guideline 3C1.1 does not ordinarily receive an acceptance of responsibility reduction. Black, 636 F. 3d at 900. A finding of obstruction of justice generally suggests that the defendant has not accepted responsibility for his crime. ...