J. PHIL GILBERT, District Judge.
This matter comes before the Court on petitioner Ahamad R. Atkins' motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). In its preliminary review of the motion, the Court has already dismissed several grounds for relief (Doc. 21). The Government has responded to the remaining grounds (Doc. 36), and Atkins has replied to that response (Doc. 52).
On September 24, 2014, the petitioner pled guilty without a plea agreement to one count of conspiracy to distribute crack cocaine and heroin from 2012 to May 2014 in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C) and 846. At the sentencing on May 18, 2015, the Court heard testimony from a number of witnesses regarding Atkins' relevant conduct and possession of a weapon. Considering the testimony, the Court found that Atkins' relevant conduct, consisting of crack cocaine, powder cocaine and heroin, equated to 4,135.8 kilograms of marihuana equivalent, which established a base offense level of 32. See U.S.S.G. § 2D1.1(c)(4).
The petitioner appealed his conviction to the United States Court of Appeals for the Seventh Circuit, which on March 18, 2016, dismissed the appeal as frivolous under the authority of Anders v. California, 386 U.S. 738 (1967). See United States v. Atkins, 640 F. App'x 549 (7th Cir. 2016). Atkins did not file a petition for a writ of certiorari to the United States Supreme Court. He filed this timely § 2255 motion on February 10, 2017.
In his lengthy § 2255 motion, the petitioner raises the following claims:
1. Prosecutorial misconduct in violation of the Fifth Amendment Due Process Clause for the following conduct:
2. Ineffective assistance of counsel in violation of the Sixth Amendment in the following ways:
3. The Court erred in including uncharged and unrelated conduct outside the time frame of the charged conspiracy in calculating relevant conduct drug amounts and did not make the finding necessary to support its conclusion.
In an order dated June 25, 2018 (Doc. 21), the Court rejected the following grounds for relief: Ground 1 in its entirety, Grounds 2a, 2c(i), 2c(iv), 2c(vi)-(xii) and 2d, and Ground 3 in its entirety. The Court further ordered the Government to respond to the remaining grounds for relief: Grounds 2b, 2c(ii), 2c(iii) and 2c(v)). Those grounds are the only ones remaining in this case:
2. Ineffective assistance of counsel in violation of the Sixth Amendment in the following ways:
Before turning to the merits of Atkins' remaining grounds for relief, the Court addresses his other pending motions
Whether to appoint an attorney to represent an indigent § 2255 petitioner is within the sound discretion of the district court. Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997). There is absolutely no right to appointment of counsel in a § 2255 case unless the absence of counsel would result in fundamental unfairness impinging on due process rights, id. (citing La Clair v. United States, 374 F.2d 486, 489 (7th Cir. 1967)); see 18 U.S.C. § 3006A(a)(2)(B) ("Whenever . . . the court determines that the interests of justice so require, representation may be provided for any financially eligible person who . . . is seeking relief under section . . . 2255 of title 28."). Counsel is required to be appointed only "`if, given the difficulty of the case and the litigant's ability, [the petitioner] could not obtain justice without an attorney, [he] could not obtain a lawyer on [his] own, and [he] would have had a reasonable chance of winning with a lawyer at [his] side.'" Winsett, 130 F.3d at 281 (quoting Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997)).
The Court has fully considered Atkins' request. First, it notes that he has not submitted evidence in support of his indigency. More importantly, however, the Court has reviewed his voluminous filings and finds the he is competent to represent his own interests quite well. He understands the relevant legal principles and the application of those principles to the facts of his case. The Court does not believe the presence of a lawyer at his side would have a reasonable chance of making any difference to the outcome of this case. For these reasons, the Court finds the absence of counsel to represent Atkins in this proceeding would not result in any fundamental unfairness impinging on his due process rights. Accordingly, it will deny his motion for counsel.
As for Atkins' request for a copy of the docket sheet in his case, he asserts he has paid the sum requested but has not received the docket sheet. The Court has consulted with the Clerk's Office, which has no record of any payment from Atkins for a docket sheet. Because Atkins has submitted no evidence of payment, the Court declines to order the Clerk of Court to send him the docket sheet. However, the Court will deny this request without prejudice and will reconsider this issue if Atkins submits a new motion with acceptable proof of payment of the required fee.
Atkins asks the Court to enter judgment in his favor because, on November 5, 2018, he had not received a copy of the Government's response brief that was due September 28, 2018. This motion is more akin to a motion for entry of default or for default judgment. In any case, it has no merit. The Government requested and received an extension of the September 28, 2018, deadline (Doc. 29), and it timely filed its response brief (after receiving one additional extension) on December 4, 2018. Because the Government's brief was filed in a timely manner, the Court will deny Atkins' motion for judgment as a matter of law (Doc. 31).
The Court must grant a § 2255 motion when a petitioner's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[r]elief 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.'" United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
In its preliminary review of Atkins' petition pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court set forth a lengthy and detailed description of the prior proceedings in Atkins' criminal case. The Court restates here the relevant portions of that description:
Mem. & Order 5-13 (Doc. 21).
In all of Atkins' remaining arguments, he asserts he was deprived of the right to effective assistance of counsel guaranteed by the Sixth Amendment to the Constitution. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009).
A party claiming ineffective assistance of counsel bears the burden of showing (1) that his counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014).
To satisfy the first prong of the Strickland test, the petitioner must direct the Court to specific acts or omissions of his counsel. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). The Court must then consider whether, in light of all of the circumstances, counsel's performance was outside the wide range of professionally competent assistance. Id. Counsel's performance should be judged as a whole and need not be perfect so long as it was competent. Groves, 755 F.3d at 593. "The question is whether an attorney's representation amounted to incompetence under `prevailing professional norms,' not whether it deviated from best practices or most common custom." Harrington v. Richter, 562 U.S. 86, 105 (2011). The Court's review of counsel's performance must be "highly deferential[,] . . . indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; accord Groves, 755 F.3d at 591. Counsel's performance must be evaluated keeping in mind that an attorney's strategies are a matter of professional judgment and often turn on facts not contained in the record. Strickland, 466 U.S. at 689. The Court cannot become a "Monday morning quarterback." Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
To satisfy the second prong of the Strickland test, the plaintiff "must demonstrate `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 694); accord Groves, 755 F.3d at 591. The plaintiff need not show that counsel's deficient performance "more likely than not altered the outcome," but that the likelihood of a different result was "substantial, not just conceivable." Harrington, 562 U.S. at 111-12.
The Court addresses each of Atkins' remaining alleged instance of ineffectiveness in turn. To the extent additional fact are relevant, the Court will note them in its discussion.
Howard represented Atkins from July 23, 2014, to November 4, 2014, during which time Atkins pled guilty and began to prepare for sentencing. Atkins claims that Howard withheld discovery from him before his guilty plea and, in fact, only played two of the sixteen videotapes of controlled buys for him while meeting with him at the jail on August 24, 2014, then said he would play only one more because he had to leave for a family commitment. He says Howard told him before the change of plea hearing just to plead guilty and get it over with so he could get back to his children sooner. Atkins further accuses Howard of misleading the Court at the November 4, 2014, status hearing by saying he had outlined the evidence against Atkins and discussed it with him at that jail visit. He claims Howard told him that if the jury saw one recorded sale on videotape it would convict him, and that if he knew any of the people in the video, the Government could not use it against him. He also claims Howard failed to tell him certain individuals
Howard has a different recollection of the August 24, 2014, jail visit. He claims that in that two-hour visit he brought the discovery relevant to Atkins to the meeting and discussed the charge, the possible statutory penalties, an outline of the discovery, the Government's case against Atkins, and potential Government witnesses against Atkins. Howard claims he played three of the sixteen videotapes for Atkins before Atkins said he had seen enough and did not want to see any more of them. Atkins further declined to review copies of Rule 16 discovery reports Howard had brought. He then discussed with Atkins his options of pleading guilty or going to trial, and Atkins told Howard he was not looking to go to trial and wanted to explore a plea where he could contest drug amounts instead. Howard recalls two telephone conversations with Atkins on August 29, 2014, where they again discussed entering a guilty plea and potential guideline sentencing ranges.
Howard followed up with a ten-page letter to Atkins dated September 3, 2014 (Doc. 36-2). That letter listed the court settings, set out Atkins' options for pleading guilty or going to trial, various sentencing guideline scenarios and possible sentences should he enter an open plea of guilty. Howard specifically mentioned that Adam Calvert would provide evidence supporting Atkins' relevant conduct, but that his credibility could be challenged. In that letter, Howard reiterated his opinion that the Government had strong evidence against Atkins, asked whether Atkins wished to plead guilty or proceed to trial, and reminded Atkins that he alone could make that decision. In response to the letter, Atkins told Howard to set up a date to plead guilty.
Howard describes telephone calls he had with Atkins on September 9, 2014, and September 11, 2014, in which they discussed the option to enter a guilty plea and whether it would be a cooperating plea or an open plea. According to Howard, in the latter call, Atkins informed him he wanted to enter into an open plea and asked him to schedule a change of plea hearing. Howard received a follow-up letter from Atkins on September 17, 2017, in which Atkins requesting a change of plea hearing as soon as possible (Doc. 36-3). Howard scheduled the hearing for September 24, 2014. Howard states that he spoke with Atkins by phone again on September 22, 2014, to discuss the change of plea hearing and supplemental discovery that might have an impact on his relevant conduct. Atkins pled guilty on September 24, 2014.
Howard recounts that on October 7, 2014, Atkins informed him by telephone that he would not cooperate with the Probation Office's PSR interview and that he wanted new counsel. On October 10, 2014, Howard received a follow-up letter from Atkins reiterating that position. Howard subsequently asked the Court for leave to withdraw, which the Court allowed on November 4, 2014. The following day he gave Atkins' file to Holmes, Atkins' new counsel.
The Government argues that Atkins cannot show prejudice from Howard's allegedly inadequate review of the discovery with him because, after reviewing the discovery twice with his subsequent counsel Holmes, he declined to move to withdraw his guilty plea. That failure further shows that any alleged coercion by Howard was not a decisive factor in Atkins' decision to plead guilty. The Government also notes that Howard's September 3, 2014, letter to Atkins is clear that Atkins alone made the decision to plead guilty, and that Atkins' statements in his Rule 11 plea colloquy confirm that he was not threatened or coerced into pleading guilty, that he did so understanding the nature of the charge and the possible punishments, and that he was satisfied with Howard's performance as counsel.
The Government further argues that Howard was not deficient in his performance as Atkins' counsel. Specifically with regard to the review of discovery, all parties agree that Howard did not show all sixteen controlled buy videos to Atkins, and Atkins has not contradicted Howard's statement that this was at Atkins' request. Further, there is no dispute that Howard was prepared to go over all the discovery in detail with Atkins, but that before that could be done, Atkins announced he wanted to plead guilty. Finally, the Government points to Howard's September 3, 2014, letter to Atkins and the plea colloquy to counter any suggestion of coercion.
The Court declines to grant Atkins relief based on alleged instances of ineffective assistance of counsel by Howard because of a lack of prejudice flowing from any deficient performance. In a case where a petitioner pled guilty as a result of alleged ineffective assistance of counsel, to show prejudice under the Strickland test, the petitioner must show that there is a reasonable probability that, but for his counsel's deficient performance, he would not have entered a guilty plea and instead would have gone to trial. Lee v. United States, 137 S.Ct. 1958, 1965 (2017); Hill v. Lockhart, 474 U.S. 52, 59 (1985); Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). Counsel's deficient performance must have been a decisive factor in the defendant's decision to enter a guilty plea. Wyatt, 574 F.3d at 458; see Julian v. Bartley, 495 F.3d 487, 498 (7th Cir. 2007). To make such a showing, the petitioner must present objective evidence that he would not have entered a guilty plea; his own self-serving testimony that he would have insisted on going to trial is not enough. Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011); McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996) (citing Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991)); see Wyatt, 574 F.3d at 458 (stating "a defendant's mere allegation that he would have chosen a path other than the conditional plea is insufficient by itself to establish prejudice."). "Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences." Lee, 137 S. Ct. at 1967.
Atkins' current assertion that he would not have pled guilty had Howard reviewed all of the discovery beforehand is belied by subsequent events. After Howard was relieved of the duty of representing Atkins and Holmes took his place, Holmes reviewed the discovery with Atkins, as Atkins admitted during the February 19, 2015, status conference and in his affidavit in support of his § 2255 motion. At the February 19, 2015 status conference, Atkins indicated he did not want to withdraw his guilty plea because he was not ready for trial. He then told the Court something different, that he wanted to review his discovery and then go to trial. Faced with Atkins' apparent indecision, the Court directed Holmes to review the discovery a second time with Atkins and, if Atkins wanted to withdraw his plea following that review, to file a motion. Holmes never filed any such motion, and the Court confirmed with Atkins at the April 23, 2015, status conference that he did not want to withdraw his guilty plea even having reviewed the discovery with Holmes twice. The objective evidence in the record shows that Atkins' complete review the discovery with counsel was not a decisive factor in his decision to plead guilty.
To the extent Atkins claims Howard coerced him into pleading guilty, again the contemporaneous evidence does not support those assertions. Howard asserts that since his August 24, 2014, meeting with Atkins, Atkins did not want to go to trial but wanted to plead guilty in a way where he would not be obligated to cooperate with the Government and could still contest relevant conduct at sentencing. Despite these indications that Atkins wanted to plead guilty, Howard continued to cover all bases in his incredibly thorough September 3, 2014, letter. That letter included explanations of the role of relevant conduct and Howard's estimate that Atkins' relevant conduct, if he was found guilty, would be from 1,000 to 3,000 kilograms of marihuana equivalent.
It is clear that any statement Howard made to Atkins prior to the September 24, 2014, plea about "getting this over with" was not coercion but an effort to achieve Atkins' aim of pleading guilty and getting back to his children as soon as possible. Indeed, moments after any such statement, Atkins confirmed under oath that no threats or promises had been made to induce him to plead guilty, that he was doing so as his own free and voluntary act, and that he was satisfied with Howard's performance as counsel. He also stated under oath that he understood the nature of the conspiracy charge, the possible penalties, and that he did not have to plead guilty but could instead have a trial. These sworn statements by Atkins at the plea colloquy are "entitled to `a presumption of verity.'" United States v. Loutos, 383 F.3d 615, 619 (7th Cir. 2004) (quoting United States v. Pike, 211 F.3d 385, 389 (7th Cir. 2000)); Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir. 2000). The petitioner bears a heavy burden of overcoming that presumption. See United States v. Hardimon, 700 F.3d 940, 944 (7th Cir. 2012). Atkins has offered nothing but his own self-serving statements now that what he said back then was not true and that he was actually coerced by Howard into pleading guilty. Furthermore, his current statements are belied by the fact that he declined to ask to withdraw his plea when later given the opportunity to do so.
The contemporaneous objective evidence shows no hint of coercion by Howard or of prejudice from Howard's conduct. It may have been true that Atkins felt compelled to plead guilty, but that was likely due to the legal predicament he was in, not Howard's representation. Atkins faced two bad choices, Howard laid out his options and the consequences of each, and Atkins picked the one that appeared desirable at that time. He cannot now blame that choice on Howard. Since Atkins has not pointed to any objective evidence that he would not have pled guilty had Howard advised him differently, the Court rejects this argument as a ground for § 2255 relief.
Finally, to the extent that Atkins claims Howard was constitutionally ineffective for failing to file motions to challenge the Government's case, he has not describe any basis for reasonable counsel to have filed a motion or what motion Howard could have filed that would have had a reasonable chance of succeeding such that Atkins would have decided not to plead guilty.
For these reasons, the Court rejects Ground 2b as a basis for § 2255 relief.
Holmes represented Atkins from November 5, 2014, immediately after Howard was allowed to withdraw, until he was relieved from this duty by the Court of Appeals on June 9, 2015.
Atkins claims that Holmes was constitutionally ineffective when he failed to file a motion to withdraw the guilty plea after Atkins told him at and before the February 19, 2015, status hearing that Howard had coerced him into pleading guilty without reviewing the discovery with him.
In response, the Government argues that Atkins has not alleged he asked Holmes to file a motion to withdraw his plea after Holmes twice reviewed his discovery with him. It further argues that he cannot show prejudice from Holmes' failure to file such a motion where Atkins himself informed the Court on April 23, 2015, that he did not wish to withdraw his plea. Indeed, Holmes states in his affidavit that Atkins originally told him he wanted to withdraw his guilty plea, but that after Holmes reviewed the evidence with him twice and advised him that there was a great likelihood a jury would convict him and he would receive a harsher sentence than if if plead guilty, Atkins decided not to withdraw his guilty plea. Additionally, the Government asserts that there is no reasonable possibility the Court would have granted a motion to withdraw in light of the plea colloquy's substantial compliance with Rule 11, as noted by the Court of Appeals on Atkins' direct appeal. See United States v. Atkins, F. App'x 549, 552 (7th Cir. 2016).
Atkins has pointed to no deficient performance by Holmes with respect to filing a motion to withdraw his guilty plea. It is true that Atkins said before and at the February 19, 2015, status hearing that he wanted to withdraw his plea because he had been coerced by Howard into pleading guilty without reviewing all of the discovery. However, the Court decided to remedy this problem by directing Holmes to review the discovery with Atkins, who could then decide, with full knowledge of the evidence against him and further advice of counsel, whether to stick with his guilty plea or try to withdraw it.
Atkins' suggestion in the current briefing that Holmes did not, in fact, review all the discovery with him is a non-starter. He has not pointed to any piece of discovery that Holmes had received from Howard or the Government yet failed to review with him before he confirmed to the Court on April 23, 2015, that he did not want to withdraw his guilty plea.
On the contrary, the objective evidence shows that Atkins decided to stick with his guilty plea. There is no suggestion that, after reviewing the discovery, he asked Holmes to file a motion to withdraw his plea. In fact, on the record at the April 23, 2015, status conference, he confirmed that he did not wish to do so. It is not deficient for counsel to decline to file a motion to withdraw his client's guilty plea where the client does not want to withdraw that plea. Holmes was simply not deficient in this regard.
Atkins claims that Holmes was constitutionally ineffective when he assured him in writing that he would get a 48-month sentence.
The Government argues that the writings to which Atkins refers do not promise or guarantee a 48-month sentence but simply describe a sentence Holmes was prepared to argue that the Court should give. Indeed, Holmes explained to Atkins by letter that he arrived at his request for 48 months by counting all the drugs Atkins admitted to Holmes that he had personally sold, which would result in a guideline sentencing range of 70 to 87 months, and then asking for a downward departure to 48 months. Thus, the prospect of a 48-month sentence was conceivable, but presupposed that the Court would sustain Atkins' objections to every drug amount for which he claimed no responsibility, regardless of the strength of the objection, and that the Court would grant a motion for downward departure.
As a preliminary matter, as noted earlier in a footnote, a defendant is entitled to a reasonable estimate of his likely sentence when he is contemplating a guilty plea. United States v. Hodges, 259 F.3d 655, 659 (7th Cir. 2001); United States v. Barnes, 83 F.3d 934, 939-40 (7th Cir. 1996). Howard provided this reasonable estimate to Atkins prior to his guilty plea. The reasonableness of Howard's estimate was borne out by the PSR and the Court's ultimate sentence.
As for Holmes communications to Atkins regarding his possible sentence, to put them in context, the Court sets forth the timeline of such communications.
On January 21, 2015, the Probation Office issued the initial PSR (Case No. 14-cr-40061-JPG, Doc. 47) finding Atkins' base offense level ("BOL") was 32 under U.S.S.G. § 2D1.1 and should be enhanced by 2 points under U.S.S.G. § 2D1.1(b)(1) for possession of a weapon and reduced by 3 points under U.S.S.G. § 3E1.1 for acceptance of responsibility, for a total offense level ("TOL") of 31. In combination with his criminal history category of IV, his TOL yielded a guideline sentencing range of 151 to 188 months in prison, well under the statutory maximum sentence of 20 years. See 21 U.S.C. § 841(b)(1)(C).
In response, on February 6, 2015, Holmes filed objections (Case No. 14-cr-40061-JPG, Doc. 50) in which he contested all drug amounts for which Atkins had denied responsibility when they had reviewed the initial PSR together. Based on the amounts for which Atkins took responsibility, Holmes proposed a BOL of 24 and TOL of 23, which resulted in a guideline sentencing range of 70 to 87 months in prison. In a letter dated March 12, 2015 (Doc. 36-5), Holmes explained to Atkins that he objected to all quantities Atkins had denied except one specific quantity for which there was evidence in a recorded telephone call. On March 17, 2015, Holmes filed amended objections (Case No. 14-cr-40061-JPG, Doc. 54) proposing the same alternate guideline range calculation as his initial objection.
About a week later, on March 25, 2015, he also filed a motion for a downward departure (Case No. 14-cr-40061-JPG, Doc. 57) that did not request any specific level of departure. In a letter dated March 27, 2015 (Doc. 1-1 at 5), Holmes explained to Atkins:
(emphasis added).
In its response to Atkins' objections to the initial PSR (Case No. 14-cr-40061-JPG, Doc. 59), the Government asked the Court to deny Atkins the 3-level offense level reduction for acceptance of responsibility because his objection to so much relevant conduct was inconsistent with acceptance of responsibility. In a letter dated April 14, 2015 (Doc. 36-7), Holmes told Atkins about the Government's position on acceptance of responsibility and that he would reply arguing that Atkins was, in fact, taking responsibility but that he simply disagreed with the drug amounts in the PSR.
In a letter to Atkins dated April 15, 2015 (Doc. 1-1 at 6), Holmes again explained how he arrived at the sentencing calculations proposed in the objections. He specifically stated, "I hope this answers your question as to how I got to level 23 and the 70-87 month range. I will then ask the judge to go down to 48 months, which is 4 years. I can ask him to go down to three years, but like I said, based on my experience, I do not think he will go down to three years" (emphasis added).
Having gotten a reasonably accurate sentencing estimate from Howard, knowing the PSR's sentencing range recommendation of 151 to 188 months in prison, and knowing that Holmes would argue for a lower sentencing range and would ask the judge to go below that range, Atkins confirmed on April 23, 2015, that he did not want to withdraw his guilty plea. Status Hrg. Tr. 8 (Doc. 40).
An amended PSR (Case No. 14-cr-40061-JPG, Doc. 66) entered on May 13, 2015, lowered the recommended criminal history category to III, which resulted in a lowered sentencing range of 135 to 168 months. In a letter dated May 14, 2015 (Doc. 1-1 at 7), Holmes informed Atkins of this lowered guideline range.
On May 18, 2015, the Court heard the parties' evidence and arguments regarding relevant conduct as well as potential enhancements and reductions. It rejected Atkins' objections, declined to reduce his offense level for acceptance of responsibility, denied his motion for a downward departure, and sentenced him to serve 216 months in prison.
Given this sequence of events, the Court cannot find Holmes was deficient in communicating to Atkins information about the length of his sentence. Nothing Holmes wrote to Atkins in any way promised a 48-month sentence. Each reference to a sentence was couched in terms indicating Holmes would argue to the Court or would ask the Court for a specific sentence, which might be available if the Court sustained the objections. Atkins may have succumbed to wishful thinking in interpreting Holmes' goal as an assurance, but there was no reasonable basis to construe it that way. Nowhere did Holmes promise Atkins a 48-month sentence. Instead, he kept him apprized of the relevant events leading up to sentencing and the arguments that each side would make at the sentencing hearing. Indeed, as Holmes told Atkins he would and as noted in the Court's earlier order in this case, Holmes ably and vigorously challenged the evidence of relevant conduct at Atkins' sentencing. He was somewhat successful in getting the Court to discount the drug amounts witnesses pinned on Atkins, although he was not successful in convincing the Court that the witnesses were entirely incredible.
In sum, Holmes functioned well within the range of reasonably competent counsel. Consequently, Atkins is not entitled to § 2255 relief on this basis.
Atkins alleges that Holmes did not sufficiently consult with him about objections to the PSR.
In response, the Government notes that Holmes filed objections for Atkins to nearly all of the relevant conduct found in the PSR. As noted above Holmes told Atkins by letter that he objected (within professional boundaries) to every quantity of drugs with which Atkins disagreed when they had reviewed the PSR together. He further stated by letter that he advised Atkins not to assert that some sales labeled as heroin were actually crack cocaine because crack cocaine actually carried a heavier sentence than heroin. He further advised Atkins not to object to the weapon enhancement and that he may jeopardize a 3-point reduction for acceptance of responsibility by making certain objections to relevant conduct.
When a § 2255 petitioner faults his attorney for failing to object or to present evidence, he bears the burden of demonstrating what evidence or argument the attorney should have presented and that the presentation of such evidence would have had a reasonable probability of changing the result. Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005); Berkey v. United States, 318 F.3d 768, 774 (7th Cir. 2003); see, e.g., United States v. Stuart, 773 F.3d 849, 852-53 (7th Cir. 2014). Thus, to prevail in his argument on this matter, Atkins must show what evidence or argument would have come about had Holmes consulted with him differently about objections to the PSR. He must further show that such evidence or argument would have had a reasonable probability of changing the outcome of the sentencing proceeding. However, Atkins has not pointed to anything Holmes would have learned or could have argued differently in opposition to the PSR had he consulted with Atkins further about objections to the PSR. Without specifying what he would have found or learned, it is impossible for Atkins to show such additional or different consultation would have had a reasonable chance of changing the Court's ultimate ruling.
Since Atkins has alleged nothing showing that Holmes was deficient in consulting with Atkins about objections to the PSR or that additional consultation would have produced something that would have had a reasonable chance of changing the Court's sentencing decision, he is not entitled to § 2255 relief on this basis.
Atkins has not specifically argued that the attorney errors he asserts in his case, when viewed together, demonstrate that he did not receive constitutionally effective representation. Nevertheless, the Court considers this question. After carefully reviewing the record, the Court finds that there is no reasonable probability that, but for the alleged errors of counsel in this case, even if considered in combination, the result of the proceedings would have been different.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings and Rule 22(b)(1) of the Federal Rules of Appellate Procedure, the Court considers whether to issue a certificate of appealability of this final order adverse to the petitioner. A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004); Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). To make such a showing, the petitioner must "demonstrate that reasonable jurists could debate whether [the] challenge in [the] habeas petition should have been resolved in a different manner or that the issue presented was adequate to deserve encouragement to proceed further." Ouska, 246 F.3d at 1046; accord Buck v. Davis, 137 S.Ct. 759, 773 (2017); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The Court finds that Atkins has not made such a showing and, accordingly, declines to issue a certificate of appealability.
For the foregoing reasons, the Court:
