United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HARRY D. LEINENWEBER, District Judge.
For the reasons stated herein, Petitioner Robert George's ("George") Motion to Vacate, Set Aside, or Correct Sentence [ECF No. 1] is denied.
The facts of this case are summarized in United States v. Spagnola, 632 F.3d 981, 985 (7th Cir. 2011), and other related opinions. Briefly, the case arises from a Bureau of Alcohol, Tobacco, Firearms & Explosives ("ATF") operation, in which a confidential informant ("CI") approached George about helping a drug courier - in reality, an ATF agent - steal cocaine from a stash house. George recruited his half-brother and co-Defendant Michael Spagnola ("Spagnola") into the plan, which was ultimately modified from robbing the stash house to robbing the courier. George did not participate in the robbery itself, because, he claimed, he could not secure childcare that day.
On December 11, 2008, George was charged in a superseding indictment with conspiracy to possess with intent to distribute more than five kilograms of cocaine (Count I), and attempting to possess with intent to distribute more than five kilograms of cocaine (Count II). (No. 7 CR 441, ECF No. 84.) A jury found George guilty on both counts, and, on February 2, 2010, the Court sentenced George to a total term of 216 months imprisonment, followed by five years of supervised release. (No. 7 CR 441, ECF No. 193.)
George subsequently appealed his conviction and sentence. On July 21, 2010, George's appellate counsel, after consulting with George, filed an Anders brief concluding that "any appeal would be wholly frivolous and without arguable merit." (No. 10-1657, ECF No. 17-1, at 19.) On November 3, 2010, the Seventh Circuit entered an order indicating that "most of the issues George might raise on appeal would be frivolous." (No. 10-1657, ECF No. 34, at 2.) Only one issue - the sufficiency of the evidence on George's attempt conviction - had potential merit. The court directed counsel to brief this issue, and, on September 9, 2011, affirmed George's conviction. United States v. George, 658 F.3d 706 (7th Cir. 2011).
II. LEGAL STANDARD
Under 28 U.S.C. § 2255(a), a federal prisoner "may move the court which imposed the sentence to vacate, set aside, or correct the sentence" on the basis that the sentence was imposed in violation of the Constitution or laws of the United States. To receive relief under § 2255, a prisoner must show a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (citation and internal quotations omitted). Alternatively, relief may be granted if a prisoner can show the trial court made "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962). 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 hearing is not required in a § 2255 case if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, " 28 U.S.C. § 2255(b), or if the petitioner makes allegations that are vague and conclusory, rather than detailed and specific, Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001) (citations and internal quotations omitted).
George raises eight claims of error in his § 2255 petition, which can be divided into three categories - trial court error (Claims I, II, III, VI, and VIII (incorrectly numbered "IX")), ineffective assistance of trial counsel (Claims IV and VII), and ineffective assistance of appellate counsel (Claim V).
A. Trial Court Error
George claims that the Court committed five errors at trial. In Claim I, George argues that the court wrongfully excluded evidence of entrapment, an issue that appellate counsel previously raised in its Anders brief. Before trial, the Court granted the Government's unopposed motion in limine to bar George from suggesting a theory of entrapment without first making a prima facie showing. In ruling on the Anders brief, the Seventh Circuit held that George had no viable challenge to the Court's exclusion of entrapment evidence because "trial counsel made no response to the government's pre-trial motion, which dooms any complaint on appeal." (No. 10-1657, ECF No. 34, at 6.)
In Claim III, George argues that the Court erred in not allowing him to call the CI at trial. This issue was also raised in the Anders brief. Before trial, the Court granted the Government's motion in limine to prevent George from calling certain witnesses, including the CI, solely for purposes of impeachment. The Seventh Circuit held that this Court did not abuse its discretion in refusing to allow George to call the CI "simply to impeach him." ( Id. ) Moreover, the court noted that defense ...