DAVID R. HERNDON, District Judge.
This matter is before the Court on Harris' motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 2). The government opposes the motion (Doc. 9) and Harris filed a reply (Doc. 7). Based on the following, the Court denies Harris' petition. Further, having closely examined the record, the Court concludes that an evidentiary hearing is not necessary in this matter. 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); Cooper v. United States, 378 F.3d 638, 641-42 (7th Cir. 2004) (district court did not abuse its discretion in denying petitioner an evidentiary hearing where petitioner did not provide additional facts or assertions that would warrant a hearing).
On March 24, 2011, Harris pled guilty to an information containing two counts: Count 1 mail fraud in violation of 18 U.S.C. § 1341 and Count 2 engaging in a monetary transaction over $10,000 in property derived from specified unlawful activity in violation of 18 U.S.C. § 1957. United States v. Harris, 11-30022-DRH; Docs. 4, 5, 6, & 7. On February 17, 2012, the Court sentenced Harris to 210 months in prison on Count 1 and 120 months on Count 2 to run concurrently and judgment reflecting the same was entered on February 21, 2012. Id. at Docs. 46 & 50. During the proceedings, Harris was represented by attorneys Adam Fein and N. Scott Rosenblum. Thereafter, Harris, through counsel, filed a notice of appeal. Id. at Doc. 53. On July 11, 2013, the Seventh Circuit Court of Appeals issued the Mandate affirming Harris' sentence and conviction and denying the motion for rehearing in this case. Id. at Doc. 147.
Subsequently, Harris, through attorney Bradford Kessler, filed this § 2255 petition on September 18, 2013 (Doc. 2). Harris raises the following arguments regarding ineffective assistance of counsel during her criminal case:
(1) counsel failed to inform her that an admission to an information was no different than pleading guilty to an indictment had she been indicted by a grand jury;
(2) counsel failed to inform her that by admitting to the information she was in fact pleading guilty to the criminal charges of mail fraud and money laundering, rather than merely admitting to the co-mingling of funds in an amount over $10,000;
(3) counsel failed to advise her that by pleading guilty to the charges, she would likely be sentenced to a term under the federal sentencing guidelines of between 135 and 168 months in prison; and
(4) counsel failed to challenge the voluntariness of the plea on direct appeal.
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. More precisely, "[r]elief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). As a result, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Of course, a § 2255 motion does not substitute for a direct appeal. A defendant cannot raise constitutional issues that he could have but did not directly appeal unless he shows good cause for and actual prejudice from his failure to raise them on appeal or unless failure to consider the claim would result in a fundamental miscarriage of justice. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. Meanwhile, a § 2255 motion cannot pursue non-constitutional issues that were not raised on direct appeal regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The only way such issues could be heard in the § 2255 context is if the alleged error of law represents "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).
The failure to hear a claim for ineffective assistance of counsel in a § 2255 motion is generally considered to work a fundamental miscarriage of justice because often such claims can be heard in no other forum. They are rarely appropriate for direct review since they often turn on events not contained in the record of a criminal proceeding. Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Fountain, 211 F.3d at 433-34. Further, the district court before which the original criminal trial occurred, not an appellate court, is in the best position to initially make the determination about the effectiveness of counsel in a particular trial and potential prejudice that stemmed from that performance. Massaro, 538 U.S. at 504-05. For these reasons, ineffective assistance of counsel claims, regardless of their substance, may be raised for the first time in a § 2255 petition.
The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." 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, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). A party claiming ineffective assistance of counsel bears the burden of showing (1) that his trial 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000). Either Strickland prong may be analyzed first; if that prong is not met, it will prove fatal to plaintiff's claim. Strickland, 466 U.S. at 697; Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993).
Regarding the first prong of the Strickland test, counsel's performance must be evaluated keeping in mind that an attorney's trial strategies are a matter of professional judgment and often turn on facts not contained in the trial record. Strickland, 466 U.S. at 689. The petitioner's burden is heavy because the Strickland test is "highly deferential to counsel, presuming reasonable judgment and declining to second guess strategic choices." United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (quotations omitted). In other words, the Court must not become a "Monday morning quarterback." Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990). With regards to the second prong of Strickland, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Fountain, 211 F.3d at 434; Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir. 2006). "A reasonable probability is defined as one that is sufficient to undermine confidence in an outcome." Adams, 453 F.3d at 435 (citing Strickland, 466 U.S. at 694).
In the instant case, the Court cannot say that neither Mr. Fein nor Mr. Rosenblum's performance significantly prejudiced Harris or that their representation fell below an objective standard of reasonableness. Further, the Court cannot say that despite these alleged errors the results of the proceedings would have been different.
As noted supra, Harris argues: (1) counsel failed to inform her that an admission to an information was no different than pleading guilty to an indictment had she been indicted by a grand jury; (2) counsel failed to inform her that by admitting to the Information she was in fact pleading guilty to the criminal charges of mail fraud and money laundering, rather than merely admitting to the co-mingling of funds in an amount over $10,000; (3) counsel failed to advise her that by pleading guilty to the charges, she would likely be sentenced to a term under the federal sentencing guidelines of between 135 and 168 months in prison; and (4) counsel failed to challenge the voluntariness of the plea on direct appeal. The Court rejects all of these arguments and addresses them together as they are interrelated.
Harris' plea documents, statements during the plea hearing and her signed waiver contradict these arguments. It is clear to the Court that Harris was informed of the nature of the proceedings and was aware of what she was pleading guilty to in the waiver of indictment. Moreover, Harris' signed waiver of indictment plainly contains charges of Mail Fraud in violation of 18 U.S.C. § 1341 and Engaging in Monetary Transaction Over $10,000 in Property Derived From Specified Unlawful Activity, in violation of 18 U.S.C. § 1957. Harris, 11-30022-DRH; Doc. 1. Further, her signed written agreement to plead guilty states:
Id. at Doc. 7, p. 4. That plea agreement also informed Harris that an anticipated sentencing guideline range was 135-168 months. Id. at Doc. 7, p. 6. In addition, the plea agreement informed her of the following:
Id. Further, during the hearing, Magistrate Judge Wilkerson thoroughly addressed all these issues with Harris as the following colloquy took place:
Harris, Doc. 76; Initial Appearance and Plea to an Information hearing transcript.
Based on the foregoing, the Court finds that Harris' petition fails. Her claims that her attorneys were ineffective are without merit. The Court finds that Harris has not met the burden regarding the involuntariness of her plea. "A reasonably competent lawyer will attempt to learn all of the relevant facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis to the client before allowing the client to plead guilty." Bethel v. United States, 458 F.3d 711, 717 (7th Cir.2006). The Supreme Court has acknowledged that the decision to plead guilty involves many uncertainties: "[b]ecause many questions about the facts and how a court or jury will apply the law to those facts cannot be answered by counsel with certitude, `[w]aiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts.' "Id. (quoting McMann v. Richardson, 397 U.S. 759, 769-70, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). Furthermore, while "a gross mischaracterization of the sentencing consequences of a plea may strongly indicate deficient performance, it is not proof of deficiency." Bethel, 458 F.3d at 717. The critical question for the Court to consider is "whether counsel undertook a good-faith effort to determine the applicable facts and estimate the sentence. An inaccurate prediction of a sentence alone is not enough to meet the standard." Id.
Also, Harris does not offer support for her allegation that her attorneys did not advise her properly. See McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996) (petitioner must present objective evidence that he would not have entered the guilty plea; his own self-serving testimony is not enough). Therefore, her claims of ineffective assistance of counsel on these grounds do not succeed. See United States v. Jordan, 870 F.2d 1310, 1318 (7th Cir.), cert. denied, 493 U.S. 831 (1989)(holding that even assuming petitioner's counsel should have advised petitioner of possible consequences of his plea, petitioner has the burden to offer evidence to support the bare allegations that his counsel failed to advise him of these possibilities). Also, Harris' arguments are belied by her statements at the change of plea hearing which are presumed truthful. See United States v. Standiford, 148 F.3d 864, 868 (7th Cir. 1998).
Magistrate Judge Wilkerson informed Harris that the Court would not be able to determine the guideline impact for the sentence in her case until after the Presentence Report was prepared and the Court reviewed the objections of the parties and that the sentence results from that may be different from the one provided by counsel and the plea agreement. Having all that spelled out quite carefully, having admitted to actually committing the charged crimes, and having been expressly admonished as to the consequences of her plea, Harris elected to go forward. Manifesting neither confusion nor hesitation, Harris pled guilty. As stated before, Harris was aware of the consequences and decided to plead guilty.
Moreover, the Court finds it telling that Harris never sought to withdraw her ill-advised guilty plea, despite the fact she had close to eleven months between pleading guilty and being sentenced, during which time she was released on bond. Lastly, the Court notes that Harris is an educated woman with a Master's Degree in Liberal Arts.
The Court finds that Harris' claims that her attorneys were ineffective are without merit. Her bald assertions (which are either not true or not supported by the record) that her counsel were ineffective are insufficient basis to grant her the relief she seeks. "An ineffective assistance of counsel claim cannot stand on a blank record, peppered with the defendant's own unsupported allegations of misconduct." United States v. Hodges, 259 F.3d 655, 660 (7th Cir. 2001); Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005)(finding that a claim of ineffective assistance unsupported by "actual proof of [his] allegations" cannot meet the threshold requirement for purposes of § 2255). In fact, the Court finds that her attorneys' actions were reasonable and sound in light of the circumstances.
Harris' sentence and conviction are legal. She has not shown that her sentence was "imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack," 28 U.S.C. § 2255. Thus, the Court rejects Harris' 28 U.S.C. § 2255 petition/motion. Finally, the Court notes that letting Harris' conviction and sentence stand would not result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 495 (1986).
Under the 2009 Amendments to Rule 11(a) of THE RULES GOVERNING SECTION 2255 PROCEEDINGS, the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Thus, the Court must determine whether petitioner's claims warrant a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2).
A habeas petitioner does not have an absolute right to appeal a district court's denial of his habeas petition; he may appeal only those issues for which a certificate of appealability have been granted. See Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009). A habeas petitioner is entitled to a certificate of appealability only if he can make a substantial showing of the denial of a constitutional right. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); 28 U.S.C. § 2253(c)(2). Under this standard, petitioner must demonstrate that, "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Id. (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Where a district denies a habeas petition on procedural grounds, the court should issue a certificate of appealability only if (1) jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and (2) jurists of reason would find it debatable whether the district court was correct in its procedural ruling. See Slack, 529 U.S. at 485.
As to petitioner's claims, the Court finds that reasonable jurists would not debate that the petition does not present a valid claim of the denial of a constitutional right, or that this Court is barred from reviewing the merits of petitioner's claim. Reasonable jurists could not debate that the petition should have been resolved in a different manner, as petitioner's claims of ineffective assistance of counsel do not present evidence of constitutionally deficient attorney performance; nor do they demonstrate resulting prejudice. Therefore, the Court declines to certify any issues for review pursuant to 28 U.S.C. § 2253(c).
Accordingly, the Court
