United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
On February 12, 2015, pro se Petitioner Arturo Valdez filed the present motion to vacate, set aside, or correct his 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 6, 2012, a grand jury returned an indictment charging Petitioner with one count of possession with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841(a)(1). On December 13, 2012, Petitioner pleaded guilty pursuant to a written plea declaration, and, on April 3, 2013, the Court sentenced Petitioner to a term of 140 months in prison. The Court entered judgment on April 5, 2013.
On April 16, 2013, Petitioner filed a timely notice of appeal. On appeal, Petitioner argued that the Court erred in sentencing him, specifically, that the Court's drug quantity determination violated his Fifth and Sixth Amendment rights. On January 14, 2014, the Seventh Circuit held that the Court did not err by calculating the drug quantity-solely for purposes of determining Petitioner's guideline range-without requiring proof beyond a reasonable doubt or a jury finding or admission. See United States v. Valdez, 739 F.3d 1052, 1054 (7th Cir. 2014). On April 2, 2014, Petitioner filed a petition for a writ of certiorari with the United States Supreme Court that the Supreme Court denied on May 19, 2014. On February 12, 2015, Petitioner filed the present pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Construing his pro se § 2255 motion liberally, see Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014), Petitioner brings ineffective assistance of trial counsel claims.
"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); United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014).
In his § 2255 motion, Petitioner first brings an ineffective assistance of trial counsel claim based on counsel's allegedly erroneous advice that his sentence would not be based on more than 700 grams of heroin. To establish constitutionally ineffective assistance of trial counsel, Petitioner must show that (1) his 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 in the context of a guilty plea, Petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012) ("a defendant must show the outcome of the plea process would have been different with competent advice"). 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").
Here, Petitioner's claim that counsel advised him that his sentence would not be based on more than 700 grams of heroin is belied by Petitioner's plea declaration and the December 13, 2012, change of plea hearing, in which both he and counsel unequivocally agreed that his sentencing base level was 30 for having delivered at least 700 grams, but less than one kilogram of heroin. (R. 53, Plea Hr'g Tr. at 3; 35 Plea Decl., at 4.) That being said, assuming that counsel provided erroneous advice, it is well-established that a district court's explanation of the sentencing process to a defendant during the defendant's plea colloquy removes any possible prejudice from counsel's advise on sentencing consequences. See Thompson v. United States, 732 F.3d 826, 830-31 (7th Cir. 2013) (per curiam) (citing Wyatt v. United States, 574 F.3d 455, 458-59 (7th Cir. 2009); Bethel v. United States, 458 F.3d 711, 718-20 (7th Cir. 2006)).
Turning to Petitioner's change of plea hearing, it is undisputed that Petitioner-under oath-accepted that the statutory maximum term of imprisonment was up to forty years in prison and that the mandatory minimum sentence was five years. (Plea Hr'g Tr., at 15.) Also, Petitioner agreed that his counsel's proposed guideline range was 78 to 97 months imprisonment and that the government's was 210 to 262 months imprisonment. ( Id. at 17-18.) The Court specifically informed Petitioner that:
Q: Your lawyer and the government disagree on what the Guideline calculation is here. Your lawyer anticipates that you will have an Offense Level of 27, a Criminal History Category of II, and a Guideline range of 78 to 97 months in prison, while it is anticipated by the government that you will have an Offense Level of 36, a Criminal History Category of II and a Guideline range of 210 to 262 months in prison. Do you understand that?
A: Yes I do. I do ...