Purham v. United States of America
Filing
18
OPINION entered by Judge Sue E. Myerscough on 12/07/2015. SEE WRITTEN OPINION. The Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (d/e 1 ) is DENIED. The Court also DENIES a Certificate of Appealability on all claims. (DM, ilcd)
E-FILED
Tuesday, 08 December, 2015 04:14:39 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
HOWARD PURHAM,
)
)
Petitioner,
)
)
v.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)
No. 14-CV-3232
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
In July 2014, Petitioner Howard Purham filed a Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255 (Motion) (d/e 1). Because Petitioner cannot show prejudice on
his ineffective-assistance-of-counsel claim, the Motion is DENIED.
I. FACTS
A. Petitioner Pleads Guilty in Case No. 12-CR-30019
On February 8, 2012, a federal grand jury charged Petitioner
with several offenses, including conspiring with his brother
Sylvester Purham to distribute 280 grams of cocaine base (crack)
(Count 1). United States v. Howard Purham, Case No. 12-CR-
Page 1 of 24
30019, Indictment (d/e 21) (hereinafter Case No. 12-CR-30019).
On May 11, 2012, Petitioner entered a plea of guilty to Count 1 of
the Indictment pursuant to a Plea Agreement. Case No. 12-CR30019, Minute Entry of May 11, 2012; Plea Agreement (d/e 30).
The Plea Agreement advised Petitioner of the elements of the
charge and the potential penalties, the latter of which included a
mandatory minimum of 10 years and up to life in prison. Case
No. 12-CR-30019, Plea Agreement ¶¶ 6, 7. The Plea Agreement
informed Petitioner that the Court would calculate his offense level
and criminal history category under the United States Sentencing
Guidelines and would use those calculations to arrive at an
advisory sentencing range. Id. ¶ 14. Further, the Court would
consider that advisory sentencing range, as well as the other
factors listed in 18 U.S.C. § 3553(a), to determine Petitioner’s
specific sentence. Id. Paragraph 16 of the Plea Agreement
specifically provided that the Court would make its own
independent determination of the applicable advisory Sentencing
Guideline range and would impose whatever sentence the Court
deemed appropriate. Id. ¶ 16.
Page 2 of 24
In Paragraph 17 of the Plea Agreement, the Government
reserved the right to make a motion for a deviation from the
Sentencing Guidelines if Petitioner provided substantial assistance
in the investigation or prosecution of other criminal offenses. As a
condition of the Plea Agreement, Petitioner agreed to continue to
cooperate with law officials pursuant to his Cooperation
Agreement. Id. ¶ 19; see also January 27, 2012 letter regarding
cooperation, attached to the Plea Agreement.
The United States agreed to move to dismiss the remaining
counts of the Indictment at sentencing. Plea Agreement ¶ 20. The
United States also agreed not to oppose a sentence at the low end
of the applicable advisory Sentencing Guideline range. Id. ¶ 21.
Petitioner remained free to recommend whatever sentence he
deemed appropriate. Id.
The Plea Agreement also contained waivers of the right to
appeal and the right to collaterally attack the conviction and
sentence. Id. ¶¶ 11, 12. Petitioner acknowledged the
voluntariness of the waiver and confirmed he had not been
coerced, threatened, intimidated, or involuntarily persuaded to
waive his appeal and collateral attack rights. Id. ¶ 13.
Page 3 of 24
In the Plea Agreement, Petitioner acknowledged that he was
waiving his constitutional rights to plead not guilty, to proceed to
jury trial, to confront and cross-examine adverse witnesses, and to
decline to testify without an inference of guilt. Id. ¶ 25. He also
acknowledged his right to counsel. Id. ¶ 25(c). Petitioner signed
the Plea Agreement immediately after the following statement:
I have read this entire Plea Agreement carefully and have
discussed it fully with my attorney. I fully understand
this Agreement, and I agree to it voluntarily and of my
own free will. I am pleading guilty because I am in fact
guilty, and I agree that the facts stated in this Agreement
about my criminal conduct are true. No threats,
promises, or commitments have been made to me or to
anyone else, and no agreements have been reached,
expressed or implied, to influence me to plead guilty
other than those stated in this written Plea Agreement. I
am satisfied with the legal services provided by my
attorney. I understand that by signing below I am stating
I agree with everything stated in this paragraph, and I am
accepting and entering into this Plea Agreement.
Plea Agreement ¶ 28 (emphasis added).
On May 11, 2012, Petitioner appeared before United States
Magistrate Judge Byron G. Cudmore. Petitioner signed a Notice
Regarding Entry of Plea of Guilty consenting to Judge Cudmore
conducting the Rule 11 proceedings. Case No. 12-CR-30019 (d/e
31).
Page 4 of 24
At the Change of Plea hearing, Magistrate Judge Cudmore
reviewed the Plea Agreement with Petitioner. Petitioner was sworn.
Case No. 12-CR-30019, Change of Plea Hearing Tr. at 5 (d/e 122).
Judge Cudmore engaged in the following colloquy with Petitioner’s
attorney, Adam Giganti, and Petitioner:
THE COURT: . . . Have you received a copy of the
indictment and reviewed the same with your client?
MR. GIGANTI: I have.
THE COURT: Reviewed with your client the
Government’s evidence against him?
MR. GIGANTI: I have.
THE COURT: Reviewed with your client any legal or
factual defenses he may have?
MR. GIGANTI: Yes. Your Honor.
THE COURT: Reviewed with your client the
applicable advisory sentencing guidelines?
MR. GIGANTI: Yes.
THE COURT: Reviewed with your client the plea
agreement that you negotiated?
Page 5 of 24
MR. GIGANTI: Yes, I have.
THE COURT: Thank you.
Mr. Purham, have you, in fact, discussed all of
those things with your attorney?
THE DEFENDANT: Yes, sir.
Tr. at 14.
Upon inquiry, Petitioner indicated he understood the essential
elements of the charge and that the maximum penalty was not less
than ten years and up to life in prison. Id. at 15, 17. Petitioner
also indicated that he understood that the sentencing judge would
be using the advisory Sentencing Guidelines to determine his
sentence. Id. at 18-19.
Judge Cudmore also confirmed that Petitioner had not been
promised a specific sentence:
THE COURT: Has anyone, including Mr. Giganti,
promised you exactly what your sentence is going to be?
THE DEFENDANT: No, sir.
Id. at 19.
Petitioner confirmed that he had read and discussed the Plea
Agreement before signing it. Tr. at 19. Petitioner understood that
Page 6 of 24
the Government reserved the right to make a motion to go below the
mandatory minimum if the Government finds Petitioner’s
cooperation substantial. Id. at 22. Regarding cooperation, Judge
Cudmore engaged in the following discussion:
THE COURT: Paragraph 19 says you’re gonna
cooperate fully. Do you understand what cooperation is?
THE DEFENDANT: Yes, sir.
THE COURT: That means cooperation against
anyone, including the co-defendant. Understood?
THE DEFENDANT: Yes, sir.
THE COURT: It’s—I often say it’s like diving into a
deep swimming pool from a tall diving board. Do you
understand the analogy?
THE DEFENDANT: Yes, sir.
THE COURT: You don’t just get your toes wet, you
get completely immersed in the cooperation.
Understood?
THE DEFENDANT: Yes, sir.
Page 7 of 24
THE COURT: If you know ten things about ten
people, you tell about all ten things about all ten people.
Understood?
THE DEFENDANT: Yes, sir.
THE COURT: You don’t say nine and you don’t
make up eleven. You know what I mean?
THE DEFENDANT: Yes, sir.
***
THE COURT: . . . [I]s the cooperation ongoing, Mr.
Bohm?
MR. BOHM: Yes, it is, Your Honor.
THE COURT: Because your cooperation is ongoing,
Paragraph 23 is very important. It is very important to
you, Mr. Purham, that you continue to cooperate in
however you have been cooperating. Truthful, complete,
hundred percent. Don’t make things up, don’t hold back
things. If you’re asked to testify, you testify. Understood?
THE DEFENDANT: Yes, sir.
THE COURT: Because what can happen, if you
balk at cooperating, or if the Government can prove that
Page 8 of 24
your cooperation has been untruthful or incomplete,
they can move through Paragraph 23 to vacate or void
the plea agreement. Understood?
THE DEFENDANT: Yes, sir.
THE COURT: But your guilty plea would stick.
Understood?
THE DEFENDANT: Yes, sir.
THE COURT: And in theory, this paragraph is
broad enough. Paragraph 23 is broad enough, if you
would be—post-sentencing if you would balk at
cooperating, the Government could come back in and
move to vacate the agreement, vacate sentencing, and
have you re-sentenced. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: It says all that in Paragraph 23. Any
questions, sir?
THE DEFENDANT: No, sir.
Tr. 23-24, 25-26.
Magistrate Judge Cudmore asked Petitioner if there was
anything else Petitioner wanted to discuss that caused Petitioner to
Page 9 of 24
plead guilty. Petitioner responded, “No, sir.” Tr. at 27. Petitioner
denied that there were any terms of the Plea Agreement that he did
not understand. Tr. 28. Petitioner also affirmed that, other than
the Plea Agreement and the Cooperation Agreement, no other
inducements from the Government caused him to want to plead
guilty. Id. at 28.
Following the hearing, Magistrate Judge Cudmore entered a
Report and Recommendation recommending that the plea of guilty
be accepted. Case No. 12-CR-30019, Report and Recommendation
(d/e 33). On May 31, 2012, this Court accepted Petitioner’s plea of
guilty to Count 1 of the Indictment and adjudged Petitioner guilty of
the offense. See Case No. 12-CR-30019, May 31, 2012 Text Order.
B. Petitioner Stops Cooperating
Petitioner initially cooperated with the Government pursuant
to a Cooperation Agreement. Case No. 14-CV-3232, Giganti Aff. ¶¶
3, 4 (d/e 13-1); Case No. 12-CR-30019, Gov’t Sentencing
Commentary at 2 (d/e 57). In July 2013, however, Petitioner
indicated he would no longer honor his Cooperation Agreement with
the Government. Giganti Aff. ¶ 11; see also Gov’t Sentencing
Commentary at 2. Giganti advised Petitioner that he would not
Page 10 of 24
receive any recommendation from the Government for a downward
departure and would not receive the previously estimated
sentencing range of 10 to 12 years. Giganti Aff. ¶ 11. Giganti also
told Petitioner that his sentencing range would likely increase
because of his refusal to cooperate and “his actions concerning a
threat to a possible witness.” Id.
C.
The Probation Office Prepares the Presentence
Investigation Report Providing for an Advisory
Sentencing Guideline Range of 235 to 292 months
On August 6, 2013, the Probation Office completed the
Revised Presentence Investigation Report (PSR). The PSR calculated
Petitioner’s base offense level at 32. Petitioner received
enhancements for making threats of violence against Jerrica Jones
and Sydney Reed, using numerous residences for the sole purpose
of distributing crack cocaine, acting as a manager, and using a
minor to commit a crime. Case No. 12-CR-30019, PSR ¶¶ 31-36
(d/e 70). After a three level reduction for acceptance of
responsibility, Petitioner’s total offense level was 38. With a
criminal history category of I, Petitioner’s advisory sentencing
guideline range was 235 to 292 months.
Page 11 of 24
D.
The Court Holds the Sentencing Hearing and Ultimately
Sentences Petitioner to 240 Months
On August 22, 2013, the Court held the sentencing hearing
and addressed the parties’ objections to the PSR. In particular, the
Government objected to Petitioner not receiving an additional twolevel enhancement for obstruction of justice based on an August
2013 telephone call Petitioner made to former co-conspirator Shiya
White instructing her to contact Jerrica Jones, another former coconspirator, and ask Jones not to testify to the threats that
members of the conspiracy made to her. See Case No. 12-CR30019, Addendum II to the PSR (d/e 70, p. 21 of 30). The
Government also objected to Petitioner receiving a three-level
reduction for acceptance of responsibility. Id. Petitioner raised
several objections, including objections to the drug amount
calculated, the enhancement for threats that members of the
conspiracy made to Jerrica Jones and Sydney Reed, the reference to
gang affiliation, and the guideline calculations. Id. at p. 22-23 of
30.
After considering the parties’ objections and the testimony
presented, the Court imposed an additional two-level enhancement
Page 12 of 24
for obstruction of justice based on Petitioner instructing White to
contact Jones and ask Jones not to testify. Case No. 12-CR-30019,
Sentencing Tr. at 123-24; Addendum II to the PSR (d/e 70, p. 21 of
30). The Court also refused to give Petitioner the three-level
reduction for acceptance of responsibility because his “objections
were meritless and his actions were inconsistent with Acceptance of
Responsibility.” Addendum II to the PSR (d/e 70, p. 21-22 of 30).
Additionally, Petitioner’s obstruction of justice was “inconsistent
with accepting responsibility for his actions” Id. at 22 of 30.
The Court’s rulings increased Petitioner’s offense level to 43.
See Case No. 12-CR-30019, Sentencing Hearing Tr. at 124, 126
(d/e 77). With a criminal history category of I, Petitioner’s advisory
guideline range was life. Id. at 126. However, the Court rejected
the 18:1 crack to powder disparity in the Sentencing Guidelines and
chose to apply a 1:1 ratio. Id. at 125-26. The Court noted that this
ruling “would make the total offense level 37, which would result in
a guideline range of 210 to 262 months.” Id. at 126.
The Government did not move for a downward departure for
substantial assistance because Petitioner both obstructed justice
and refused to continue to cooperate. Id. at 127. The Government
Page 13 of 24
did, however, agree to continue to abide by the Plea Agreement and
moved to dismiss the remaining counts of the Indictment. Id. at
128.
The Government recommended a sentence of 240 months. Id.
Petitioner asked for a sentence at the low end of the sentencing
range. Id. at 136. The Court sentenced Petitioner to 240 months’
imprisonment. Id. at 144.
E.
Petitioner Files his § 2255 Petition Raising IneffectiveAssistance-of-Counsel Claims in Case No. 14-CV-3232
In July 2014, Petitioner filed his § 2255 Petition in this case.
In his Petition, Petitioner raises two grounds. First, Petitioner
asserts that he asked his attorney if there was anything that could
happen to enhance Petitioner’s anticipated advisory guideline
sentencing range of 151 to 188 months (which corresponds to an
offense level of 34 and a criminal history score of I). Case No. 14CV-3232, Petition ¶ 12 Ground One (d/e 1). His attorney told him
“no.” Id. Second, Petitioner asserts that his attorney told him that,
if he signed the Plea Agreement, he would not receive anything more
Page 14 of 24
than 10 to 12 years’ imprisonment.1 Petition ¶ 12 Ground Two (d/e
1). Petitioner asks for a new plea agreement and a new sentence.2
In August 2014, the Government filed a Motion to Dismiss on
the ground that the § 2255 Petition was barred by Petitioner’s
waiver of his right to collaterally attack his conviction and sentence.
Mot. to Dismiss (d/e 3). Following additional briefing, the Court
ultimately found that Petitioner’s claims of ineffective assistance of
counsel were not barred by the collateral attack waiver in the Plea
Agreement. Opinion (d/e 9). On January 30, 2015, this Court
appointed counsel to Petitioner.
On March 9, 2015, the Government filed its Response in
Opposition to Petitioner’s Motion Pursuant to 28 U.S.C. § 2255 (d/e
13). On June 30, 2015, after receiving several extensions, counsel
for Petitioner filed a Supplemental Motion Pursuant to 28 U.S.C.
§ 2255 (d/e 17). The Court finds that an evidentiary hearing is not
required because the Petition, files, and record of the case
Petitioner now asserts in his Affidavit that Giganti told him that, with
cooperation, Petitioner could receive a sentence of less than 10 years. Pet. Aff.
¶ 2 (d/e 17). The Court does not believe this changes the analysis.
1
Petitioner also challenged the method by which the Magistrate Judge
purportedly accepted Petitioner’s plea (see Resp. d/e 5), but this Court
summarily denied that claim (see Opinion d/e 9).
2
Page 15 of 24
conclusively show Petitioner is not entitled to relief. 28 U.S.C.
¶ 2255(b).
II. ANALYSIS
To show ineffective assistance of counsel in the context of a
guilty plea, a petitioner must demonstrate: (1) his counsel’s
performance fell below an objective standard of reasonableness; and
(2) there is a reasonable probability that, but for counsel’s errors,
the petitioner would not have pleaded guilty and would have
insisted on going to trial. Bethel v. United States, 458 F.3d 711,
715 (7th Cir. 2006). A court need not address the question of
counsel’s performance if it is easier to dispose of the claim due to a
lack of prejudice. Strickland v. Washington, 466 U.S. 668, 697
(1984); Taylor v. Bradley, 448 F.3d 942, 949 (7th Cir. 2006).
“A reasonably competent counsel will attempt to learn all of
the facts of the case, make an estimate of a likely sentence, and
communicate the results of that analysis before allowing his client
to plead guilty.” Moore v. Bryant, 348 F.3d 238, 241 (7th Cir.
2003). A gross mischaracterization of the sentencing consequences
“may strongly indicate deficient performance,” although it is not
proof of deficiency. Bethel, 458 F.3d at 717. That is, an inaccurate
Page 16 of 24
prediction is not enough to meet the standard for ineffective
assistance of counsel. The court must determine whether counsel
made a good-faith effort to learn the facts and estimate the
sentence. Id.
In his Petition, Petitioner asserts that counsel told Petitioner
that no enhancements would be applied to Petitioner’s sentencing
guideline range of 151 to 188 months. See also Pet. Supp. Mot. at
2 (d/e 17) (counsel did not discuss possible enhancements or
revocation for breach of the plea agreement). However, the
Probation Office, in the PSR, applied several enhancements, which
increased Petitioner’s offense level and advisory sentencing
guideline range.
Petitioner also claims that counsel told him that if Petitioner
signed the Plea Agreement, Petitioner would receive no more than
10 to 12 years’ imprisonment. In his Supplemental Motion,
Petitioner assets that counsel advised him he would receive a
sentence of less than 10 years. Pet. Supp. Mot. at 1. The Court
sentenced Petitioner to 20 years. Petitioner now claims that, had he
known that he would receive multiple enhancements and that he
Page 17 of 24
would not receive the low end of his anticipated guideline range, he
would have entered an open plea of guilty.
In this case, even if Petitioner could show that counsel’s
performance were deficient (an issue the Court need not decide),
Petitioner cannot show prejudice. To show prejudice in the context
of a guilty plea, Petitioner must establish with objective evidence a
reasonable probability that, but for counsel’s erroneous advice, he
would not have pleaded guilty and would have insisted on going to
trial. Bethel, 458 F.3d at 717. The mere allegation that, but for
counsel’s erroneous advice, a petitioner would not have pleaded
guilty and would have insisted on going to trial is insufficient to
establish prejudice. Berkey v. United States, 318 F.3d 768, 772-73
(7th Cir. 2003). Instead, a petitioner must establish, through
objective evidence, that a reasonable probability exists that he
would have proceeded to trial. Id.
Here, Petitioner does not even consistently assert that, but for
his counsel’s advice, he would not have pleaded guilty and would
have proceeded to trial. Instead, Petitioner asserts that he would
have entered an open plea of guilty. See Supp. Motion at 2 (d/e
17); Petition at 12 (d/e 1) (requesting a new plea agreement);
Page 18 of 24
Response at 1(d/e 5) (stating that but for counsel’s advice,
Petitioner would not have signed the Plea Agreement); but see
Response at 1-2 (d/e 8) (stating that if he did not sign the plea
agreement, he would have had a “better chance at trial” and
requesting that his motion be granted so he can have “a fair try
with my case and be sentence[d] with justice”). A petitioner does
not establish prejudice by asserting that he would not have entered
this particular plea agreement or could have negotiated a different
plea. Gargano v. United States, 852 F.2d 886, 891 (7th Cir. 1988)
(a petitioner cannot show prejudice by alleging he would not have
entered into that particular plea agreement); Bethel, 458 F.3d at
720 (same); but see Wyatt v. United States, 574 F.3d 455, 458 (7th
Cir. 2009) (examining whether the attorney’s advice was a decisive
factor in the petitioner’s decision to enter a conditional plea instead
of going to trial or entering an unconditional plea).3
In any event, Petitioner cannot show prejudice because he
cannot show that the allegedly deficient advice played a decisive
factor in his decision to plead guilty. Wyatt, 574 F.3d at 458
Petitioner cites Missouri v. Frye, 132 S. Ct. 1399, 1209 (2012), but that case
is distinguishable because it involved the failure to communicate a formal plea
offer, in which case the petitioner must show he would have accepted the
earlier plea offer had he been afforded effective assistance of counsel.
3
Page 19 of 24
(finding that the allegedly deficient advice did not play a decisive
factor in the defendant’s decision to enter a conditional plea in light
of the statements in his “petition to enter the conditional plea that
his decision to plead was not tied to any particular sentence” and
his statements at the plea hearing showing that his decision to
“make the conditional plea was not predicated upon any specific
sentence”). Petitioner’s claims are belied by his statements in the
Plea Agreement and at the Change of Plea hearing. See Bridgeman
v. United States, 229 F.3d 589, 592 (7th Cir. 2000) (finding that the
petitioner’s argument that his counsel’s advice rendered his plea
involuntary was belied by his statements at the plea hearing, which
are presumed truthful); United States v. Schaap, No. 2:12-cr-131,
2:14-cv-87, 2014 WL 4209441 at *6 (N.D. Ind. Aug. 26, 2014)
(finding the petitioner’s claim that counsel was ineffective by
“promising a 10 year maximum term of imprisonment, but likely
less,” was “directly contradicted” by the plea agreement and the
change of plea hearing).
The Plea Agreement and transcript of the Change of Plea
hearing show that the allegedly deficient advice was not a decisive
factor in Petitioner’s decision to plead guilty. Petitioner was advised
Page 20 of 24
that he faced a mandatory minimum sentence of 10 years and up to
life in prison. Case No. 12-CR-30019, Plea Agreement ¶ 7; Change
of Plea Hearing Tr. at 17. Petitioner was told that the Court would
calculate Petitioner’s offense level and criminal history category
under the Sentencing Guidelines and would use those calculations
to arrive at an advisory sentencing range. Plea Agreement ¶ 14; Tr.
18 (stating that “the sentencing judge will be using certain advisory
Sentencing Guidelines to give advice as to where [his] sentence
should fall”). Petitioner also indicated that he understood that the
Plea Agreement did not bind the Court and that the Court “has the
ability to do what the Court deems appropriate.” Tr. at 19-20.
Petitioner acknowledged that no promises or commitments
had been made to him and no agreement had been reached,
expressed or implied, to influence him to plead guilty, other than
those stated in the Plea Agreement. Plea Agreement ¶ 28. At the
hearing, Magistrate Judge Cudmore asked Petitioner whether
anyone, including his attorney, had promised Petitioner a specific
sentence, and Petitioner stated, “No, sir.” Tr. 19. The Plea
Agreement and the transcript of the Change of Plea hearing
demonstrate that Petitioner’s decision to plead guilty was not
Page 21 of 24
predicated upon any specific sentence or particular application of
the Sentencing Guidelines. See Bethel, 458 F.3d at 718 (finding the
defendant could not show prejudice because the district court
advised the defendant “six or seven different ways that he could not
rely on any particular predictions or discussion about a possible
sentence when he entered his plea”); Thompson v. United States,
732 F.3d 826, 830 (7th Cir. 2013) (finding that “the district court’s
explanation of the sentencing process at [the petitioner’s] plea
colloquy removed any possible prejudice of [his counsel’s] advice”);
United States v. Martinez, 169 F.3d 1049, 1054 (7th Cir. 1999)
(finding that although the defendant “asserts that he would not
have pled guilty but for his attorney’s flawed predictions, his Rule
11 hearing tells a different story. Because of the great weight we
place on these in-court statements, we credit them over his later
claims”).
Moreover, the record demonstrates another reason why
Petitioner did not receive the sentence he hoped to receive.
Following his guilty plea, Petitioner asked a former co-conspirator,
Shiya White, to contact another co-conspirator, Jerrica Jones, and
told White to tell Jones not to testify about the threats members of
Page 22 of 24
the conspiracy had previously made to her. See Case No. 1230019, Addendum II to the PSR, (d/e 70, p. 21 of 30). This conduct
resulted in Petitioner receiving a two-level increase to his offense
level for obstruction of justice. Case No. 12-30019, Tr. at 124. In
addition, despite signing a Cooperation Agreement and being
extensively advised about that Cooperation Agreement at the
Change of Plea hearing, Petitioner informed the Government shortly
before sentencing that he no longer wished to cooperate with
authorities. See Case No. 12-30019, Government’s Sentencing
Commentary p. 2 (d/e 57); Giganti Aff. (d/e 13-1). Therefore, the
Government refused to move for a downward departure. This
obviously affected the sentence Petitioner expected to receive (less
than 10 years or 10 to 12 years) but was in no way related to any
alleged ineffective assistance of counsel.
For all these reasons, the Court finds Petitioner is not entitled
to relief on his ineffective assistance of counsel claim because he
cannot demonstrate prejudice.
III. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255
Proceedings For the United States District Courts, this Court
Page 23 of 24
declines to issue a Certificate of Appealability. A certificate may
issue only if Petitioner has made a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2). Petitioner must
show that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Peterson v. Douma,
751 F.3d 524, 528 (7th Cir. 2014) (quotations and citations
omitted). Because the claims at issue do not satisfy this standard,
the Court denies a Certificate of Appealability on all claims.
IV. CONCLUSION
For the reasons stated, the Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (d/e 1) is DENIED.
The Court also DENIES a Certificate of Appealability on all claims.
ENTER: December 7, 2015
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 24 of 24
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