United States District Court, C.D. Illinois, Urbana Division
VICTOR D. JACKSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MICHAEL P. McCUSKEY, District Judge.
On January 31, 2014, Petitioner Victor D. Jackson filed this Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1, 2). The government filed its Response (#4) on March 3, 2014. Petitioner filed his Reply on April 14, 2014. For the following reasons, Petitioner's Motion (#1, 2) is DENIED.
Petitioner was indicted on June 10, 2010, on three counts of distributing 5 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The first count was alleged to have occurred on April 23, 2010 (Petitioner was joined in this count by co-defendant Daniel J. Kelly). The second and third counts occurred on April 26 and April 28, 2010, respectively. Panel attorney Bruce G. Ratcliffe was appointed to represent Petitioner. On March 31, 2011, Kelly plead guilty to count one of the Indictment. On April 14, 2011, Petitioner was found guilty by a jury of counts one and two of the Indictment. A mistrial was declared on count three. On July 8, 2011, Petitioner was sentenced to 360 months in the Federal Bureau of Prisons (BOP) and Kelly was sentenced to 188 months in the BOP. The U.S. Seventh Circuit Court of Appeals affirmed Petitioner's conviction but vacated his sentence and remanded the case to this court for resentencing in light of the U.S. Supreme Court's decision in Dorsey v. United States, 132 S.Ct. 2321 (2012). United States v. Jackson, 491 Fed.Appx. 738 (7th Cir. July 5, 2012). On January 29, 2013, Petitioner was resentenced to 200 months in the BOP.
Petitioner's Motion under 28 U.S.C. § 2255
Petitioner filed the instant Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28
U.S.C. § 2255 (#1, 2) on January 31, 2014. Petitioner alleges, in general, that his trial counsel was ineffective. Petitioner makes three specific arguments regarding his counsel's ineffectiveness: (1) counsel was ineffective for failure to "negotiate or present a reasonable plea for consideration" and instead "moved the defendant toward trial and an unrealistic expectation of outcome"; (2) counsel was ineffective for failing to challenge his sentence, in that the sentence was based on the "elements" of the crime charged instead of being based solely on the "evidence" of the crime; and (3) counsel was ineffective for failing to cross examine and impeach key government witnesses and for failure to investigate and find witnesses who would support Petitioner's defense. The government filed its Response (#4) on March 3, 2014. The government argued that (1) Petitioner was well aware of the plea offer in this case and he rejected the offer; (2) it would have been unreasonable for counsel to object to the court's consideration of the factors set out in 18 U.S.C. § 3553(a) when sentencing Petitioner; and (3) Petitioner did not provide any proof of what witnesses counsel should have called and counsel engaged in a lengthy cross-examination and attempted to impeach Shannon Kizer, the government's main witness. Petitioner filed a Reply on April 14, 2014.
Legal Standards Governing Ineffective Assistance of Counsel Claims Generally
Petitioner's § 2255 claims are based on the Sixth Amendment to the United States Constitution. The Seventh Circuit recently addressed the general legal standards governing habeas claims under the Sixth Amendment for ineffective assistance:
"Relief under this statute is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice. Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997). 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. Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009) (citations omitted).
A party asserting ineffective assistance of counsel bears the burden of establishing two elements: (1) that his trial counsel's performance fell below objective standards for reasonably effective representation, and (2) that counsel's deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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).
To satisfy the first element of the Strickland test, [the petitioner] must direct the court to specific acts or omissions by his counsel. Wyatt, 574 F.3d at 458 (citation omitted). In that context, the court considers whether in light of all the circumstances counsel's performance was outside the wide range of professionally competent assistance. Id. The court's assessment of counsel's performance is highly deferential [, ]... indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...' See Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052; accord Wyatt, 574 F.3d at 458. Further, counsel's performance is to be evaluated in light of the discretion properly accorded an attorney to develop appropriate trial strategies according to the attorney's independent judgment, given the facts of the case, at least some of which may not be reflected in the trial record. See Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052. Courts are admonished not to become Monday morning quarterback[s]' in evaluating counsel's performance. Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
To satisfy the second Strickland element, [the petitioner] must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different, such that the proceedings were fundamentally unfair or unreliable. Jones, 635 F.3d at 915 (citations omitted); 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 ...