United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY
TANYA WALTON PRATT, JUDGE
This matter is before the Court on Motion to Vacate, Set Sside or Correct Sentence filed by Petitioner Denny Ray Anderson (“Mr. Anderson”). For the reasons explained in this Entry, the motion of 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.
On October 19, 2011, Mr. Anderson was charged by Indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
On August 16, 2012, Mr. Anderson filed a Petition to Enter a Plea of Guilty in Case No. 1:11-cr-00201-TWP-TAB. On that same day, the parties submitted to the Court a written Plea Agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A), and (C). That agreement provided that Mr. Anderson would plead guilty to the charge alleged in the Indictment and that he would be sentenced to a term of imprisonment of 180 months. The Plea Agreement further provided that in exchange for concessions made by the United States, Mr. Anderson expressly waived his right to a direct appeal of the conviction and sentence imposed. Crim. Dkt. 51; Plea Agreement ¶ 8. Mr. Anderson did not, however, waive his right to collaterally attack the conviction and sentence via 28 U.S.C. § 2255.
On August 27, 2012, Mr. Anderson appeared before the Court for a change of plea hearing. At that hearing, the Court found that Mr. Anderson’s plea of guilty was voluntarily and knowingly made and that a factual basis for the plea was established. The Court then accepted Mr. Anderson’s plea and adjudged him guilty as charged.
On November 1, 2012, a sentencing hearing was conducted. At the sentencing hearing, the Court, in conformity with the binding Plea Agreement, sentenced Mr. Anderson to a term of imprisonment of 180 months to be followed by five years of supervised release. Mr. Anderson was also fined $500 and assessed the mandatory assessment of $100. Judgment of conviction was entered on November 5, 2012.
On October 28, 2013, Mr. Anderson filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255. Mr. Anderson requests an evidentiary hearing, the appointment of counsel and that his guilty plea and sentence be vacated. The United States responded and Mr. Anderson filed a reply.
II. Ineffective Assistance of Counsel
The Court must grant a § 2255 motion when a petitioner’s “sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However, “[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations.” Prewitt v. U.S., 83 F.3d 812, 816 (7th Cir. 1996). Relief under § 2255 is available only if an error is “constitutional, jurisdictional, or is a fundamental defect which inherently results in a complete miscarriage of justice.” Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997) (quotations omitted). It is appropriate 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.
Mr. Anderson claims that he is entitled to relief under § 2255 because his counsel failed to provide effective assistance as guaranteed by the Sixth Amendment. 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 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009).
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 (1984); Stitts v. Wilson, 713 F.3d 887, 891 (7th Cir. 2013) (petitioner has burden of demonstrating both deficient performance and prejudice). 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.
Mr. Anderson’s motion to vacate argues that his “plea was not intelligent, knowing, or voluntary” because he was “suffering mental problems.” He claims that his counsel was ineffective for not raising these issues. Next, Mr. Anderson asserts that his counsel was ineffective for not seeking a more lenient sentence based on Mr. Anderson’s “diminished mental capacity.” Finally, Mr. Anderson claims that his ...