United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HARRY D. LEINENWEBER, District Judge.
Before the Court is a Motion to Vacate, Set Aside or Correct Judgment filed by Petitioner Thomas Cunningham pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the Motion is denied.
On October 10, 2007, Petitioner was indicted on a charge of bank robbery. Petitioner was represented by appointed counsel until a conflict of interest arose in April 2008, which prompted counsel to move to withdraw. The motion was granted and a new attorney was appointed, but before the new attorney could file an appearance, Petitioner made an oral motion to terminate the new attorney so that he could proceed pro se. Petitioner represented himself until August 20, 2008, when the Court appointed Ronald Clark to represent Petitioner. Mr. Clark stayed with Petitioner through his trial and sentencing hearing.
On December 16, 2009, a jury found Petitioner guilty of one count of bank robbery under 18 U.S.C. § 2113(a). Because the Court concluded that Petitioner qualified as a career offender, Petitioner's guideline range was for a term of imprisonment of 210 to 240 months. But the Court found that the career offender classification overstated Petitioner's criminal history, and therefore the Court imposed a sentence of 180 months of imprisonment and three years of supervised release.
Petitioner filed a Notice of Appeal on August 28, 2009, and the Seventh Circuit appointed an attorney to represent him. After reviewing the trial court record and finding only frivolous claims, appellate counsel moved to withdraw under Anders v. California, 386 U.S. 738 (1967). On September 9, 2010, the Seventh Circuit granted the Motion to Withdraw and dismissed Petitioner's appeal. United States v. Cunningham, 393 F.Appx. 403, 408 (7th Cir. 2010). The United States Supreme Court denied certiorari on May 16, 2011. Cunningham v. United States, 131 S.Ct. 2471 (2011).
The Motion to Vacate, filed timely on May 8, 2012, raises substantive due process and ineffective assistance of counsel claims. First, Petitioner argues that he was beaten by a prison guard after he requested to read a law book before his trial. Next, Petitioner contends that his trial counsel was ineffective because trial counsel failed "to communicate any further [plea] negotiations on Petitioner's behalf." Motion at 24. Finally, Petitioner claims that his appellate counsel provided ineffective assistance in three ways: (1) by concluding in her Anders brief that Petitioner could not raise a meritorious ex post facto challenge, (2) by failing to raise a significant and obvious change in governing Seventh Circuit precedent, and (3) by filing an Anders brief arguing the case against Petitioner.
II. LEGAL STANDARD
Prisoners in federal custody may challenge their conviction or sentence by filing a motion with "the court which imposed the sentence" arguing that the "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. Relief under § 2255 is an "extraordinary remedy" because the petitioner already has "had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
A. Pre-trial Assault
Petitioner alleges that he was assaulted by a correctional officer after he requested to read a law book before his trial. It is unclear how this alleged event contributed to or affected Petitioner's conviction or sentence. Because this beating was inflicted by a Government officer, Petitioner argues, the Government punished him before he was convicted. Regardless of whether he might prevail in a separate suit for damages or injunctive relief based on this claim - indeed, Petitioner already has commenced a separate Bivens action - Petitioner has not argued that the alleged assault entitles him to have his conviction or sentence vacated or modified. Nor could he, as there is no indication that the alleged beating affected any of the proceedings before this Court. Accordingly, this claim is not cognizable under § 2255. Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997) (explaining that § 2255 is available only where the petitioner challenges the fact that he is "in custody").
B. Ineffective Assistance of Counsel
To demonstrate that counsel was ineffective, a habeas petitioner must establish that "counsel's representation fell below an objective standard of reasonableness" and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 688 (1984). "The Strickland test is highly deferential to counsel, presuming reasonable judgment and declining to ...