United States District Court, N.D. Indiana, South Bend Division
ROBERT L. MILLER, Jr., District Judge.
This cause is before the court on Jerome Williams's petition filed under 28 U.S.C. § 2255 relating to the amended judgment entered in this case on March 15, 2012. The court assumes the reader's familiarity with the history of this case and won't repeat it here. See United States v. Williams , 584 F.3d 714 (7th Cir. 2009); Williams v. United States, Nos. 3:10-CV-531 & 3:08-CR-72 , 2011 WL 2147212 (N.D. Ind. May 31, 2011); Williams v. United States, Nos. 3:10-CV-531 & 3:08-CR-72 , 2011 WL 5445728 (N.D. Ind. Nov. 9, 2011); United States v. Williams, 486 Fed.App'x 613 (7th Cir. 2012); Williams v. United States, No. 13-2530, 2013 WL 8020940 (7th Cir. Dec. 13, 2013).
Mr. Williams has asserted seven grounds for relief based on his claims that his court-appointed counsel, Clark Holesinger, provided ineffective assistance at the October 25, 2011 evidentiary hearing on Mr. Williams's Section 2255 petition and at the resentencing hearing that followed on March 15, 2012, and that Yates French, his court-appointed appellate counsel, provided ineffective assistance on appeal. The government filed its response, and Mr. Williams has filed a reply. Each ground for relief will be addressed below.
Standard of Review
The rules governing petitions filed under 28 U.S.C. § 2255 provide that once a motion is filed,
The motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.
Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. An examination of the claims of Mr. Williams's petition confirms that no hearing is necessary.
A court should grant a Section 2255 petition to vacate, set aside, or correct a sentence when the petitioner establishes that he was sentenced "in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." United States v. Hays , 397 F.3d 564, 566 (7th Cir. 2005) (citations and internal quotations omitted). To prevail on his claims of ineffective assistance of counsel, Mr. Williams must establish the following two elements:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington , 466 U.S. 668, 687 (1984).
Ground 1 - Ineffective Assistance of Habeas Counsel
Mr. Williams first claims Mr. Holesinger was ineffective because he failed to argue that the indictment was flawed. According to Mr. Williams, (1) the law holds that distribution offenses under 21 U.S.C. § 841(a)(1) "must be separately charged when alleged to be at different places, times, and with different people with different drug amounts, " and (2) the indictment was prejudicial in that the indictment was "duplicitous that affected sentencing exposure to double jeopardy, shaping of the evidence, and prevented Williams of a defense and caused the indictment to be fatal varianced and constructively amended."
The transcript of the evidentiary hearing shows that Mr. Williams is mistaken: Mr. Holesinger argued that Mr. Williams's conviction on Count 1 should be vacated and he should get a new trial. See Status Conf. Tr. (Oct. 25, 2011), pp. 3-5, 7. At the resentencing hearing, Mr. Holesinger reiterated Mr. Williams's position that he had been unable to properly defend himself against the lesser included offenses during trial. See Resentencing Hrg. Tr. (Mar. 15, 2012), pp. 4-5, 10. The record confirms Mr. Holesinger raised the issues currently being cited by Mr. Williams; that Mr. Holesinger didn't succeed on his argument that Mr. Williams's conviction should be set aside doesn't establish that he provided ineffective assistance. See United States v. Recendiz , 557 F.3d 511, 531 (7th Cir. 2009) ("effective' does not mean successful or without flaw").
Mr. Williams also claims in Ground 1 that the prosecutor "deliberately violated the grand jury proceedings pursuant to Fed.R.Crim.P. (6) in which effected the petit jury, " but his claim in this regard relates to his underlying conviction, not the resentencing proceedings. The court of appeals specified in its December 13, 2013 order that Mr. Williams can challenge the amended judgment entered March 15, 2012, "not the sentence that was the subject of his initial § 2255 [petition]." Williams v. United States, No. 13-2530, 2013 WL 8020940, at *2 (7th Cir. Dec. 13, 2013); see also Suggs v. United States , 705 F.3d 279, 282 (7th Cir. 2013) ("We have held that [Section 2255] motions after resentencing are not second or successive when they allege errors made during the resentencing, but they are second or successive when they challenge the underlying ...