United States District Court, Southern District of Indiana, Indianapolis Division
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY
LARRY McKINNEY, JUDGE
For the reasons explained in this Entry, the motion of Lincoln Plowman (“Mr. Plowman”) for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.
I. The § 2255 Motion
On September 15, 2010, Mr. Plowman, an elected member of the Indianapolis and Marion County City-County Council, was charged in an Indictment with count 1, attempted extortion under color of official right in violation of 18 U.S.C. § 1951(a); and count 2, soliciting a bribe in violation of 18 U.S.C. § 666(a)(1)(B), in 1:10-cr-00151-LJM-KPF-1. After a trial by jury, on September 15, 2011, Mr. Plowman was found guilty of both counts of the Indictment.
The Court sentenced Mr. Plowman to a term of imprisonment of 40 months on both counts, concurrent, to be followed by two years of supervised release on each count, concurrent. Judgment of conviction was entered on December 13, 2011.
Mr. Plowman filed a notice of appeal. On November 20, 2012, the Seventh Circuit Court of Appeals affirmed his conviction. On October 28, 2013, Mr. Plowman filed this motion for post-conviction 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 can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). Mr. Plowman asserts four claims of ineffective assistance of counsel: 1) counsel was ineffective by failing to challenge the sufficiency of the indictment; 2) counsel was ineffective by failing to argue mens rea; 3) counsel was ineffective for refusing to subpoena two requested defense witnesses; and 4) counsel was ineffective by failing to appeal the motion in limine which precluded witness Mike Speedy from testifying.
The right to effective assistance of counsel is violated when the performance of counsel falls below an objective standard of reasonable professional conduct and prejudices the defense. Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). For Mr. Plowman to establish that his “counsel’s assistance was so defective as to require reversal” of his conviction, he must make two showings: (1) deficient performance that (2) prejudiced his defense. Strickland, 466 U.S. at 687.
With respect to the first prong, “‘the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688). In addition, the performance of counsel under Strickland should be evaluated from counsel’s perspective at that time, making every effort to “‘eliminate the distorting effects of hindsight.’” Id. at 523 (quoting Strickland, 466 U.S. at 689).
With respect to the prejudice requirement, the petitioner must show that “there is 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.” Strickland, 466 U.S. at 694. It is not enough for a petitioner to show that “the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.
Sufficiency of Indictment
Mr. Plowman argues that the Indictment failed to recite that Mr. Plowman committed an overt act of interstate commerce by extortion and how federal funds were associated with the alleged bribery crime, in violation of Rule 7 of the Federal Rules of Criminal Procedure. He contends that had trial counsel ...