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Foster v. United States

United States District Court, Seventh Circuit

October 23, 2013

SHANNON FOSTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on petitioner Shannon Foster's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). For the following reasons, the Court denies Foster's motion.

1. Background

On July 12, 2012, Foster pleaded guilty to conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846. See United States v. Foster, Case No. 11-cr-40064-JPG (Doc. 128). On October 30, 2012, the undersigned Judge sentence Foster to 127 months imprisonment, eight years supervised release, a $500 fine, and a $100 special assessment. Doc. 150 in criminal case. Judgment was entered on October 31, 2012. Doc. 155 in criminal case. Foster did not file a direct appeal.

Foster's § 2255 motion was timely filed on October 21, 2012. Foster asserts her trial counsel, William A. Shirley, was ineffective in several respects. In Ground One, Foster asserts Shirley was ineffective because he failed to withdraw from her case due to a conflict. In Ground Two, Foster asserts Shirley was ineffective during the pre-trial phase of the case for his failure to properly investigate charges, conduct meaningful discovery, and challenge false statements. Doc. 1, p. 5. In Ground Three, Foster alleges Shirley was ineffective during the plea agreement phase as for failing to challenge the § 851 enhancement based on a drug charge for which she had completed probation, and falsely assuring Foster that the Government would not seek a sentencing enhancement if she cooperated. The Court will now consider whether Foster's allegations warrant an evidentiary hearing.

2. Analysis

The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). "Relief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).

The Seventh Circuit has interpreted 28 U.S.C. § 2255 as not necessitating an evidentiary hearing "when a petitioner's allegations are vague, conclusory, or palpably incredible rather than detailed and specific.'" Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006) (quoting Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001)). As a threshold requirement, a § 2255 petitioner must attach to her petition "a detailed and specific affidavit which shows that the petitioner had actual proof of the allegations going beyond mere unsupported assertions." Kafo, 467 F.3d at 1067 (quoting Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996)); Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002)). Here, Foster's motion simply contains bare allegations of Shirley's alleged ineffectiveness. She also fails to provide an affidavit showing that she has proof to support her allegations. Accordingly, the Court denies Foster's motion for those reasons. Even if Foster had provided an affidavit containing details of her allegations, the Court would deny her motion for the following reasons.

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), cert. denied, 130 S.Ct. 2431 (2010); 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 turn on facts not contained in the trial record. Strickland, 466 U.S. at 689. The Court cannot become a "Monday morning quarterback." Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).

To satisfy the second prong of the Strickland test, the plaintiff must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different, such that the proceedings were fundamentally unfair or unreliable. United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011); Fountain, 211 F.3d at 434; Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir. 2006). "A reasonable probability is defined as one that is sufficient to undermine confidence in an outcome." Adams, 453 F.3d at 435 (citing Strickland, 466 U.S. at 694).

The failure to hear a claim for ineffective assistance of counsel in a § 2255 motion is generally considered to work a fundamental miscarriage of justice because often such claims can be heard in no other forum. They are rarely appropriate for direct review since they often turn on events not contained in the record of a criminal proceeding. Massaro, 538 U.S. at 504-05; Fountain, 211 F.3d 433-34. In addition, the district court before which the original criminal trial occurred, not an appellate court, is in the best position to initially make the determination about the effectiveness of counsel in a particular trial and potential prejudice that stemmed from counsel's performance. Massaro, 538 U.S. at 504-05. For these reasons, ineffective assistance of counsel claims, regardless of their substance, may be raised for the first time in a § 2255 petition. The Court will now consider each of Foster's ineffective assistance of counsel claims in turn.

a. Conflict of Interest

First, Foster claims Shirley was ineffective because he failed to withdraw from her case when he had a conflict. Foster alleges Shirley had filed a civil suit against the government regarding a dispute over attorney's fees in previous cases, and told Foster "he would like Foster to be ...


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