United States District Court, Northern District of Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE UNITED STATE E DISTRICT COURT JUDGE
On January 23, 2015, pro se Petitioner Jason Hinton 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 31, 2011, a grand jury returned a superseding indictment charging Petitioner and his co-defendant with one count of knowingly and intentionally distributing 50 grams or more of crack cocaine (Count One) and one count of conspiring to distribute and distributing 50 grams or more of crack cocaine (Count Two) in violation of 21 U.S.C. §§ 841(a)(1), 846. At his jury trial, the majority of the evidence against Petitioner consisted of recorded telephone calls between himself and a confidential informant. After a two day trial ending on April 3, 2012, the jury returned a guilty verdict on both Counts One and Two of the superseding indictment finding that Petitioner was responsible for distributing 50 grams or more of mixtures and substances containing cocaine base as to both counts. On August 3, 2012, the Court sentenced Petitioner to a total term of 132 months in prison.
On August, 14, 2012, Petitioner filed a timely notice of appeal. On appeal, Petitioner argued that the Court erred when it denied his motion to produce the confidential informant and that his 132 month sentence was manifestly unreasonable. On October 23, 2013, the United States Court of Appeals for the Seventh Circuit rejected Petitioner’s arguments and affirmed Petitioner’s conviction and sentence. See United States v. Hinton, 535 Fed.Appx. 528 (7th Cir. 2013) (unpublished). Petitioner filed the present motion pursuant to § 2255 on January 23, 2015. Construing his pro se § 2255 motion liberally, see Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014), Petitioner maintains that his trial counsel was constitutionally ineffective in violation of the Sixth Amendment. Petitioner also brings claims that are either procedurally defaulted or claims that he already appealed to the Seventh Circuit, as addressed in detail below.
“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”); United States v. Fleming, 676 F.3d 621, 625 (7th Cir. 2012) (“A § 2255 petition is ‘not a substitute for a direct appeal.’”) (citation omitted). If a Section 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the court’s collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, see Sandoval v. United States, 574 F.3d 847, 850-51 (7th Cir. 2009), or that enforcing the procedural default would lead to a “fundamental miscarriage of justice.” Fleming, 676 F.3d at 625. 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).
I. Ineffective Assistance of Trial Counsel Claims
Construing his pro se § 2255 petition liberally, Petitioner brings an ineffective assistance of trial counsel claim. 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, 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”); Groves, 755 F.3d at 591 (If petitioner “is unable to make a sufficient showing of one of the Strickland prongs, we need not consider the other.”).
A. Motion to Produce the Confidential Informant
First, Petitioner bases his ineffective assistance of trial counsel claim on counsel’s failure to file a separate motion to produce the confidential informant instead of merely joining co-defendant’s deficient motion. It is well-established that the government has a limited privilege to withhold the identity of a non-testifying confidential informant. See United States v. McDowell, 687 F.3d 904, 911 (7th Cir. 2012) (citing Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). “This privilege gives way if the defendant proves that the disclosure of the informant’s identity ‘is relevant and helpful’ to his defense ‘or is essential to a fair determination of a cause.’” United States v. Harris, 531 F.3d 507, 514 (7th Cir. 2008) (citation omitted).
Assuming counsel’s performance in failing to file a separate or supplemental motion to produce the confidential informant was deficient, Petitioner has not established that counsel’s performance was prejudicial because Petitioner knew the identity of the confidential informant, as he admitted in his opening brief on appeal. Moreover, prior to trial, the government produced photographs of the confidential informant, along with transcripts and recorded conversations with the confidential informant’s voice. In the context of this evidence, the Court concluded that Petitioner and his co-defendant knew the identity of the confidential informant. (R. 132, 7/18/12, Mem., Op, & Order, at 7-8.) Because Petitioner knew the identity of the confidential informant, he was not prejudiced by counsel’s allegedly deficient performance in failing to file a supplemental or separate motion to produce the confidential informant. See United States v. Andrus, 775 F.2d 825, 842 (7th Cir. 1985); see also United ...