United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
JOSEPH S. VAN BOKKELEN, District Judge.
David Finley, a federal prisoner, has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or amend his conviction (DE 114). The question before the Court is whether it must hold an evidentiary hearing on his motion, and, if no evidentiary hearing is required, whether Finley is entitled to any relief under § 2255.
Finley was charged by indictment with: two counts of distributing cocaine (Counts 1 and 2); making a false statement during the purchase of a firearm (Count 3); sale of a firearm to a prohibited person (Count 4); distributing marijuana (Count 5); possession with intent to distribute cocaine (Count 6); and possession of a firearm in furtherance of a drug trafficking crime (Count 7). The Government dismissed all but Counts 3 and 5. Finley pleaded guilty to those Counts without the benefit of a plea agreement. He was sentenced to 30 months in prison.
Finley now claims that his guilty plea was involuntary because it was the result of ineffective assistance of counsel. While his motion does not clearly so state, the Court infers that Finley now wishes to withdraw his guilty plea and proceed to trial.
B. Legal Standards
Title 28 U.S.C. § 2255(b) provides that unless a § 2255 motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court must grant a hearing on the motion. A § 2255 petitioner is entitled to an evidentiary hearing if he alleges facts that, if proven, would entitle him to relief. Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002). However, an evidentiary hearing is not required when a petitioner's allegations are "vague, conclusory, or palpably incredible rather than detailed and specific." Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006) (quoting Bruce v. United States, 256 F.3d 596, 597 (7th Cir. 2001)).
To prevail on a claim for ineffective assistance of counsel in the context of a guilty plea, a defendant must show that counsel's performance fell below an objective standard of reasonableness; and that there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have gone to trial, Bethel v. United States, 458 F.3d 711, 717 (7th Cir. 2006). In other words, the defendant must show that he suffered prejudice as a result of the alleged ineffective assistance. Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009). However, a mere allegation by a defendant that he would have insisted on going to trial is not sufficient to establish prejudice. Bethel, 458 F.3d at 718. Moreover, 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.
C. Ineffective Assistance of Counsel Claims
Finley claims that his counsel was ineffective because he failed to pursue an entrapment defense. When the alleged error of counsel is the failure to advise the defendant of a potential defense to the crime charged, the resolution of the question of prejudice to the defendant depends largely on whether the defense likely would have succeeded at trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). But Finley does not allege in his § 2255 motion facts sufficient to show that he would have been permitted to present an entrapment defense to the jury if he had proceeded to trial. In order to present a jury question on an entrapment defense, there must be evidence of both government inducement and a lack of predisposition to commit the crime. United States v. Haddad, 462 F.3d 783, 790 (7th Cir. 2006).
The Seventh Circuit Court of Appeals has very recently clarified the inducement prong of an entrapment defense:
We hold that inducement means more than mere government solicitation of the crime; the fact that government agents initiated contact with the defendant, suggested the crime, or furnished the ordinary opportunity to commit it is insufficient to show inducement. Instead, inducement means government solicitation of the crime plus some other government conduct that creates a risk that a person who would not commit the crime if left to his own devices will do so in response to the government's efforts. The "other conduct" may be repeated attempts at persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward beyond that inherent in the customary execution of the crime, pleas based on need, sympathy, or friendship, or any other conduct by government agents that creates a risk that a person who otherwise would not commit the crime if left alone will do so in response to the government's efforts.
United States v. Mayfield, No.11-2439, 2014 WL 5861628, at *17 (7th Cir. Nov. 13, 2014).
With regard to inducement, Finley claims only that an acquaintance who, unbeknownst to him was a confidential informant (CI), asked him to help the CI's father buy a gun and to get marijuana for his mother, and that he did so. He claims no repeated attempts to convince him to engage in illegal conduct, no fraud, threats, coercion, harassment, promises of great reward or appeals to need, sympathy, or friendship. The government's agent did nothing more than solicit the crimes. The government's conduct cannot be considered inducement so as to permit an entrapment defense. Thus, even assuming that Finley's counsel did not discuss a ...