The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Rondale Lee Chapman's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 and its supporting memorandum (Docs. 1 & 2). On July 7, 2011, the petitioner entered an open plea of guilty to three counts of production of child pornography in violation of 18 U.S.C. § 2251(a). The Court sentenced the petitioner to serve a total of 480 months in prison -- 300 months on Count 1 and 180 month on Counts 2 and 3, to be served concurrently with each other and consecutively to the term for Count 1. The petitioner appealed his conviction to the United States Court of Appeals for the Seventh Circuit, which on September 20, 2012, affirmed the Court's judgment. See United States v. Chapman, 694 F.3d 908 (7th Cir. 2012) (per curiam). The petitioner did not seek a writ of certiorari from the United States Supreme Court.
In his § 2255 motion, the petitioner raises the following claims:
I. Ineffective assistance of counsel for failing to inform petitioner of the possibility of consecutive sentences for his three counts of conviction and for failing to provide a reasonably accurate estimate of his likely sentence before his guilty plea;
IIa. Ineffective assistance of counsel for failing to file a motion to suppress evidence seized from the petitioner's former home, and other evidence to which the seized evidence led, based on a warrant application that contained material omissions;
IIb. Ineffective assistance of counsel for failing to challenge the "chain of custody" of the videotape upon which the Government's case relied;
III. Petitioner's plea was involuntary because he was unaware of the possibility of consecutive sentence terms he could receive as a consequence of pleading guilty or the fact that he would have to register as a sex offender;
IV. Ineffective assistance of counsel on appeal for failing to challenge the Court's compliance with Federal Rule of Criminal Procedure 11 during petitioner's guilty plea.
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court has determined that it is plain from the motion and the record of the prior proceedings that the petitioner is not entitled to relief on Ground IIa.
In Ground IIa, Chapman asserts he received ineffective assistance of counsel in violation of the Sixth Amendment prior to his guilty plea. Chapman notes that a videotape containing child pornography was cited in a complaint in support of a search warrant to search his former residence (he had moved in with his girlfriend at the time of the search but still used his mobile home). Chapman argues his counsel was constitutionally ineffective for failing to discover that the videotape was obtained in a burglary and to file a motion to suppress on the basis that the complaining officer omitted that fact from his complaint in support of the warrant. Although Chapman's guilty plea would ordinarily waive all non-jurisdictional defects occurring prior to the plea, he can challenge his plea by showing he received ineffective assistance of counsel during the plea process. Koons v. United States, 639 F.3d 348, 350-51 (7th Cir.), cert. denied, 132 S. Ct. 362 (2011).
The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009).
A party claiming ineffective assistance of counsel bears the burden of showing (1) that his trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009); Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000).
To satisfy the first prong of the Strickland test, the petitioner must direct the Court to specific acts or omissions of his counsel. Wyatt, 574 F.3d at 458. The Court must then consider whether in light of all of the circumstances counsel's performance was outside the wide range of professionally competent assistance. Id. The Court's review of counsel's performance must be "highly deferential[,] . . . indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; accord Wyatt, 574 F.3d at 458. Counsel's performance must be evaluated keeping in mind that an attorney's trial strategies are a matter of professional judgment and often ...