United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
On August 25, 2014, pro se Petitioner Leslie Williams-Ogletree filed the present motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Petitioner's § 2255 motion and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
On March 16, 2011, a grand jury returned an indictment charging Petitioner and her two co-defendants, Robtrel White and Larryl White, with various offenses arising from a conspiracy to file false income tax returns in order to fraudulently obtain income tax refunds for the tax years 2005-07. Specifically, Count 1 charged Petitioner with one count of conspiracy to submit false claims to the United States in violation of 18 U.S.C. § 286 and Counts 2 through 6 charged Petitioner with submitting false claims to the United States in violation of 18 U.S.C. § 287. On January 16, 2013, a jury returned a guilty verdict against Petitioner on each count. On May 9, 2013, the Court sentenced Petitioner to concurrent terms of 51 months in prison on each count - which was at the low end of Petitioner's guideline range of 51-63 months.
Petitioner appealed her sentence to the United States Court of Appeals for the Seventh Circuit arguing that the Court erred in calculating the tax loss under U.S.S.G. § 2T1.1(c)(1) and in assessing the sentencing factors under 18 U.S.C. § 3553. On June 3, 2014, the Seventh Circuit affirmed. See United States v. Williams-Ogletree, 752 F.3d 658 (7th Cir. 2014). Petitioner then filed this timely motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255.
"Relief under [§ 2255] 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." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013). In other words, under § 2255, relief "is available only when the sentence was imposed in violation of the Constitution or laws of the United States, ' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack." Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). Accordingly, a § 2255 motion is not a substitute for a direct criminal appeal nor is it a means by which a defendant may appeal the same claims a second time. See Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (relief under 2255 "will not be allowed to do service for an appeal"). Nevertheless, because claims of ineffective assistance of counsel often involve evidence outside of the trial record, such claims may be brought for the first time in a § 2255 motion. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).
Construing her pro se § 2255 motion liberally, see Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014), Petitioner brings an ineffective assistance of trial counsel claim in violation of the Sixth Amendment. To establish constitutionally ineffective assistance of trial counsel, Petitioner must show that (1) her trial attorney's performance "fell below an objective standard of reasonableness, " informed by "prevailing professional norms" and (2) "but for counsel's unprofessional errors the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "To reflect the wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, [the Court's] review of an attorney's performance is highly deferential and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014) (citation omitted). To establish prejudice, it is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding, " instead trial counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Morgan v. Hardy, 662 F.3d 790, 802 (7th Cir. 2011) (quoting Strickland, 466 U.S. at 687, 693). If Petitioner fails to make a proper showing under one of the Strickland prongs, the Court need not consider the other. See id. at 697 ("a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant").
I. Court's Communication with Probation Officer
First, Petitioner argues that her trial counsel was constitutionally ineffective because he failed to object to a recess taken at sentencing. Petitioner maintains that she was prejudiced because during the recess, the Court conferred with the probation officer in chambers without the presence of counsel. Petitioner cannot establish that her counsel's failure to object to this recess prejudiced her because district courts are permitted to consult with probation officers, who are officers of the federal courts, without counsel present. See United States v. Reyes, 283 F.3d 446, 455 (2d Cir. 2002); 18 U.S.C. § 3602. In other words, the United States Probation Office is part of the judicial branch of government, therefore, the Court may discuss sentencing issues with probation officers because they serve under the direction of the federal courts. See id. at 455-56; United States v. Veteto, 945 F.2d 163, 166 (7th Cir. 1991). Therefore, Petitioner's first ineffective assistance of trial counsel claim is without merit.
II. Government's Sentencing Exhibit
Next, Petitioner argues that her trial counsel was constitutionally ineffective because he failed to challenge the reliability, authenticity, and method by which the government acquired logs sheets introduced at sentencing. The River Forest Police Department seized the log sheets at issue from the apartment of Petitioner's co-defendant in June 2007. The log sheets tracked the filing of false tax returns for the year 2006. (11 CR 0203, R. 190, Sent. Tr., at 7-10.) At sentencing, the government argued that the tax log sheets, along with other evidence, established Petitioner's participation in the conspiracy and reflected the total loss amount as exceeding $1, 000, 000. ( Id. at 26.)
Here, Petitioner cannot establish that her counsel's conduct meets Strickland's insufficient performance standard because the Federal Rules of Evidence do not apply at sentencing proceedings, and thus counsel's failure to object to the admission of the tax log sheets was not in error. See Fed.R.Evid. 1101(d)(3); United States v. Ghiassi, 729 F.3d 690, 695 (7th Cir. 2013) (at sentencing, "the district court is not bound by the rules of evidence and, so long as it is reliable, may consider a wide range of evidence, including hearsay, that might otherwise be inadmissable at trial."); see, e.g., United States v. Stapleton, No. 04 C 1303, 2004 WL 1965710, at *3 (N.D. Ill. Aug. 31, 2004). Furthermore, the logs sheets were reliable based on the government's detailed explanation of the method by which the River Forest ...