United States District Court, S.D. Indiana, Terre Haute Division
MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF
JANE MAGNUS-STINSON, District Judge.
For the reasons discussed in this Entry, the motion of Susie Annette Smith for relief pursuant to 28 U.S.C. § 2255 must be denied. In addition, the Court finds that a certificate of appealability should not issue.
Smith was charged in the first count of a multi-defendant Indictment with conspiracy to distribute 500 grams or more of a mixture containing a detectable amount of methamphetamine and conspiracy to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. After a jury trial, Smith was found guilty of the charges against her and the Court sentenced her to a term of imprisonment of 151 months to be followed by five years of supervised release.
Smith unsuccessfully appealed her conviction and sentence to the Seventh Circuit. See United States v. Moreland, 703 F.3d 976 (7th Cir. 2012). On December 3, 2012, Smith's conviction and sentence were affirmed. Discussing the evidence against her, the Court of Appeals explained that "Smith stored large quantities of meth and money at her residence (a police search recovered nearly $81, 000 from a safe) and had firearms to defend the stash in aid of the drug conspiracy of her sons Wesley and Antrio Hammond. She assisted them in deliveries of meth and the collection of sale proceeds." 703 F.3d at 991.
Smith now seeks relief pursuant to 28 U.S.C. § 2255. A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner challenges her conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to 28 U.S.C. § 2255 "upon the ground that the 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(a). Relief pursuant to § 2255 is limited to "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (internal quotation omitted).
Smith claims that she is entitled to relief under § 2255 arguing that her counsel was ineffective at trial and on appeal, that her sentence was improperly enhanced, and that the government did not prove the drug quantities attributable to her.
A. Ineffective Assistance of Counsel
Smith first asserts that her trial and appellate counsel were deficient in various respects. A petitioner claiming ineffective assistance of counsel bears the burden of showing (1) that her 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 (1984); United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011). 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.
Smith first argues that her trial counsel failed to conduct a reasonable and adequate investigation. She asserts that her counsel "had no sound base strategy, " "piggybacked off of counsel representing other defendants" and did not investigate her case. Smith alleges that her counsel failed to listen to the wiretapped conversations submitted by the prosecution, leaving relevant information left unplayed, and did not investigate "who the real Annette' was that was spoken of in the tapes."
Vague assertions that counsel "had no sound base strategy" or "piggybacked off of counsel representing other defendants" are insufficient to support an ineffective assistance of counsel claim. See Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996) (requiring a "a detailed and specific affidavit which shows that the petitioner has actual proof of the allegations going beyond mere unsupported assertions"). Further, Smith argues that her counsel left relevant information from the wiretapped conversations unplayed, but does not explain what that information was or how it could have supported her defense. Again, this is insufficient to support her claims for relief. See id. To the extent that Smith argues that counsel did not investigate "who the real Annette was that was spoken of in the tapes, " the record indicates differently. First, there is testimony ...