United States of America v. Parker
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 12/2/16.Mailed notice(ca, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
United States of America,
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Plaintiff,
v.
Edward Parker,
Defendant.
15 C 7363
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
In June 2013, Edward Parker pleaded guilty to a charge of conspiracy to
distribute a controlled substance in violation of 28 U.S.C. § 846.
He was then
sentenced to a prison term of 160 months and a supervised release period of 10
years. Parker has now filed a pro se motion to vacate his conviction and sentence
pursuant to 28 U.S.C. § 2255. He asserts claims based on violations of the Fourth
Amendment and 18 U.S.C. § 2518, actual innocence, the Government’s failure to
disclose evidence, and ineffective assistance of counsel.
For the reasons stated
herein, Parker’s § 2255 motion is denied.
Factual and Procedural Background
In June 2012, Edward Parker and eighteen other defendants were charged by
criminal complaint for crimes relating to the sale and possession of cocaine. Compl.
at 1–5, No. 12 CR 421, ECF No. 1.
The complaint was the culmination of an
extensive investigation into a drug-trafficking organization led by Odell Givens, one
of Parker’s co-defendants.
In turn, the investigation of Givens’s organization
originated from an earlier, separate investigation of a street gang called the
Imperial Insane Vice Lords. One of the targets of this earlier investigation was
Nathaniel Hoskins, an alleged leader of the gang. Gov’t Resp. at 2, No. 15 CV 7363,
ECF No. 7; see also Indictment ¶ 5(a), No. 13 CR 0772, ECF No. 2 (indicting
Hoskins and twenty-three other defendants affiliated with the Imperial Insane Vice
Lords). The investigation of Hoskins led law enforcement agents to seek a courtauthorized wiretap for the phone of a man named Jettie Williams. 1 See Gov’t Resp.
at 4–5. Intercepted conversations between Williams and Givens then led agents to
suspect that Givens was engaged in drug-trafficking activities. Id. In September
2011, the Chicago Police Department and the federal Drug Enforcement
Administration commenced their investigation of Givens by obtaining a wiretap for
his cell phone. See generally Gov’t Ex. A, Sept. 2011 Application, No. 12 CR 421,
ECF No. 332-1.
The investigation of Givens subsequently expanded to include
interceptions of conversations on more than a dozen cell phones used by Parker and
two other defendants involved in Givens’s organization. Compl. ¶ 7 & n.1. All of
these interceptions were made pursuant to judicial authorization under 18 U.S.C.
§ 2518. Id.
The criminal complaint that was filed in June 2012 charged Parker and
Givens of conspiring with one another to possess and distribute cocaine. Id. at 1.
As evidence supporting this charge against Parker, the Government relied on “calls
in which Parker was intercepted; calls in which other [members of Givens’s drug-
Williams is not named in the indictment against Hoskins and the twenty-three other
affiliates of the Imperial Insane Vice Lords because Williams died before the charges in
that case were brought. See Mot. Vacate at 2, No. 15 CV 7363, ECF No. 1; Gov’t Resp. at 5.
1
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trafficking organization] were intercepted talking about Parker; surveillance; and
seizures of controlled substances and U.S. currency.”
Id. at ¶ 15.
Parker was
arrested and made his initial appearance on June 6, 2012, at which time the Court
appointed attorney Eugene Steingold to serve as Parker’s counsel. No. 12 CR 421,
ECF No. 15. Several months later, Parker testified before a grand jury and was
indicted for multiple crimes based on the original complaint. No. 12 CR 421, ECF
No. 187.
On June 20, 2013, pursuant to a written plea agreement, Parker pleaded
guilty to conspiracy to possess with intent to distribute and to distribute at least 5
kilograms of cocaine and at least 280 grams of cocaine base. Plea Agreement ¶ 5,
No. 12 CR 421, ECF No. 215. In the plea agreement, Parker admitted that he had
“worked for a narcotics distribution business led by Odell Givens” since the summer
of 2010.
Id. at ¶ 6.
Parker’s participation in Givens’s business included
“transport[ing] kilogram quantities of cocaine that Givens received from sources of
supply,” “stor[ing] cocaine and crack cocaine at his residence,” “repackag[ing]
powder cocaine for distribution,” “cook[ing] powder cocaine into crack cocaine for
distribution,” “regularly deliver[ing] powder and crack cocaine to customers,” and
“collect[ing] drug proceeds from customers.” Id.
Under the terms of the plea agreement, Parker expressly waived the right to
challenge his conviction, his sentence, or any pretrial rulings on direct appeal. Id.
at ¶ 23(b).
He also expressly waived the right to collaterally challenge his
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conviction and sentence in a § 2255 motion, subject to narrow exceptions. Id. This
collateral-review waiver reads in pertinent part:
[D]efendant also waives his right to challenge his conviction and
sentence, and the manner in which the sentence was determined, and
(in any case in which the term of imprisonment and fine are within the
maximums provided by statute) his attorney’s alleged failure or refusal
to file a notice of appeal, in any collateral attack or future challenge,
including but not limited to a motion brought under Title 28, United
States Code, Section 2255. The waiver in this paragraph does not
apply to a claim of involuntariness, or ineffective assistance of counsel,
which relates directly to this waiver or to its negotiation.
Id.
The collateral-review waiver is followed by a paragraph that provides:
“Defendant understands that by pleading guilty he is waiving all rights set forth in
the prior paragraphs. Defendant’s attorney has explained those rights to him, and
the consequences of his waiver of those rights.” Id. at ¶ 23(c). The waiver was
explained again to Parker at his plea hearing on June 20, 2013, as well as at his
sentencing hearing on June 9, 2015. No. 12 CR 421, ECF No. 214, 288.
In exchange for Parker’s cooperation with law enforcement, the Government
agreed to move the Court for a downward departure pursuant to U.S.S.G. § 5K1.1
for a sentence of 55 percent of the low end of the applicable Guideline range. Plea
Agreement ¶¶ 11–13. At Parker’s sentencing hearing, the Court sentenced Parker
to the agreed-upon term of 160 months’ imprisonment. Judgment at 2, No. 12 CR
421, ECF No. 303. On August 20, 2015, Parker filed a pro se motion to vacate his
conviction and sentence under § 2255.
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Legal Standard
Section 2255 provides that a criminal defendant is entitled to relief from his
conviction and sentence if “the court finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized by law or otherwise
open to collateral attack, or that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to
collateral attack.” 28 U.S.C. § 2255(b). A court may deny a § 2255 motion without
an evidentiary hearing if “the motion and the files and records of the case
conclusively show” that the defendant is not entitled to relief. Id. Relief under
§ 2255 is available “only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a fundamental defect has
occurred which results in a complete miscarriage of justice.” Blake v. United States,
723 F.3d 870, 878–79 (7th Cir. 2013). Courts liberally construe § 2255 motions filed
by pro se movants. Gaylord v. United States, 829 F.3d 500, 508 (7th Cir. 2016)
(citing Warren v. Baenen, 712 F.3d 1090, 1099–1100 (7th Cir. 2013)).
Analysis
I.
Collateral-Review Waiver Pursuant to Parker’s Plea Agreement
Parker advances several arguments in support of his motion to vacate his
conviction and sentence under § 2255.
His primary argument challenges the
legality of the wiretaps used both in the investigation of the Imperial Insane Vice
Lords as well as in the investigation of Givens’s organization. Specifically, Parker
alleges that officers fabricated evidence in the affidavits used to obtain
authorization for several of these wiretaps, thereby violating the Fourth
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Amendment and 18 U.S.C. § 2518, and he claims that evidence obtained through
the wiretaps therefore should have been suppressed as the “fruit of a poisonous
tree.” Mot. Vacate at 3–6, 10–17. In addition, Parker claims that he is entitled to
relief because he is actually innocent, because the Government failed to disclose
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and because he
received ineffective assistance of counsel. Id. at 5, 8, 24–26.
The Government points out, however, that Parker expressly waived his right
to collaterally challenge his conviction and sentence in a § 2255 motion under the
express terms of his plea agreement, subject to limited exceptions. Gov’t Resp. at 1,
3–4; see also Plea Agreement ¶ 23(b). “It is well-settled that waivers of direct and
collateral review in plea agreements are generally enforceable.” Hurlow v. United
States, 726 F.3d 958, 964 (7th Cir. 2013) (citing United States v. Chapa, 602 F.3d
865, 868 (7th Cir. 2010); Jones v. United States, 167 F.3d 1142, 1144–45 (7th Cir.
1999)).
Courts treat plea agreements like contracts, and plea agreements are
“therefore governed by ordinary contract law principles.” United States v. Quintero,
618 F.3d 746, 751 (7th Cir. 2010). Accordingly, a waiver of collateral review is
generally valid and enforceable as long as the language of the waiver is “express
and unambiguous” and the waiver is made “knowingly and voluntarily.” Id.
Here, the waiver in Parker’s plea agreement is undeniably express and
unambiguous: it specifically states that, by entering into the plea agreement,
Parker “waive[d] his right to challenge his conviction and sentence . . . in any
collateral attack or future challenge, including but not limited to a motion brought
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under Title 28, United States Code, Section 2255.” Plea Agreement ¶ 23(b). In
addition, nothing in the record raises any doubt (and Parker does not dispute) that
this waiver was entered into knowingly and voluntarily. The waiver is therefore
enforceable, subject to the exceptions that it sets forth for certain claims of
involuntariness or ineffective assistance of counsel. See Quintero, 618 F.3d at 750–
52; see also Smith v. United States, No. 13 C 4885, 2013 WL 6632637, at *1–2 (N.D.
Ill. Dec. 16, 2013) (enforcing waiver of collateral-review rights pursuant to a plea
agreement containing terms identical to the terms of Parker’s waiver). Because
Parker has not made a claim of involuntariness, his claim for ineffective assistance
of counsel is the only claim in his § 2255 motion that can survive. All of his other
claims are barred as waived under the plea agreement.
II.
Ineffective Assistance of Counsel
Parker’s claim for ineffective assistance of counsel is premised on his
attorney’s failure to move to suppress evidence allegedly obtained in violation of the
Fourth Amendment and 18 U.S.C. § 2518. Mot. Vacate at 24–26. In Parker’s own
words, “[c]ounsel Steingold was constitutionally ineffective for not moving to
suppress intercepted calls on the ground that the government not only failed to
establish the necessity for a wiretap but also lied to the Chief Judge to gain access
to a wiretap.” Id. at 25. According to Parker, these lies comprised statements that
the “conduct of Givens and Williams [was] criminal in nature” and that “Givens was
a subject calling to and from Nathaniel Hoskins[’s] phone.” Id. at 24–25; see also id.
at 3–4, 20. Parker asserts that “[i]f counsel had properly challenged the wiretap
application[,] the proceedings in this case would have been different.” Id. at 24.
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A.
Scope of the Collateral-Review Waiver
As a threshold matter, the Government argues that Parker’s ineffectiveassistance claim is barred by the waiver in his plea agreement, along with all of his
other claims, because Parker has not established that “the purported ineffective
assistance of counsel related directly to the negotiation of this waiver.” Gov’t Resp.
at 8. Indeed, on its face, the plea agreement states that any ineffective-assistance
claim is waived on collateral review unless the claim “relates directly to this waiver
or to its negotiation.” Plea Agreement ¶ 23(b).
But the Government’s argument ignores important Seventh Circuit precedent
and therefore misses the mark. The Seventh Circuit has made clear that “appellate
and collateral review waivers cannot be invoked against claims that counsel was
ineffective in the negotiation of the plea agreement.”
Hurlow, 726 F.3d at 964
(citing United States v. Jemison, 237 F.3d 911, 916 n.8 (7th Cir. 2001); United
States v. Hodges, 259 F.3d 655, 659 n.3 (7th Cir. 2001); Bridgeman v. United States,
229 F.3d 589, 591 (7th Cir. 2000)). Thus, when a plea agreement carves out an
ineffective-assistance exception to a waiver of appellate or collateral review, the
agreement may not narrow the exception so far as to permit only those ineffectiveassistance claims that specifically concern the negotiation of the waiver, as opposed
to the negotiation of the plea agreement as a whole. Hurlow, 726 F.3d at 965–66.
In other words, “appellate waivers, no matter how narrowly crafted, do not bar a
defendant’s claim that he entered into a plea agreement based upon advice of
counsel that fell below Sixth Amendment standards.” Smith, 2013 WL 6632637, at
*1 (citing Hurlow, 726 F.3d at 964–68). This limitation on the enforceability of such
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waivers is based on Sixth Amendment principles “dictat[ing] that a claim of
ineffective assistance of counsel in connection with the negotiation of a cooperation
agreement cannot be barred by the agreement itself—the very product of the
alleged ineffectiveness.” Hurlow, 726 F.3d at 965 (quoting Jones v. United States,
167 F.3d 1142, 1144–45 (7th Cir. 1999)) (emphasis and internal quotation marks
omitted). The Government is therefore incorrect to argue that Parker must claim
ineffective assistance specifically with respect to the negotiation of the waiver.
Instead, in order for his ineffective-assistance claim to proceed to the merits, it is
sufficient for Parker to claim ineffective assistance with respect to the negotiation of
his plea agreement as a whole. Hurlow, 726 F.3d at 966; Smith, 2013 WL 6632637,
at *1.
That said, there is some ambiguity as to whether Parker does in fact claim
ineffective assistance with respect to the negotiation of his plea agreement as a
whole. Not once does his motion explicitly connect his attorney’s conduct to the
agreement or its negotiation. Parker seems to imply such a connection, however, in
his statement that “[i]f counsel had properly challenged the wiretap application[,]
the proceedings in this case would have been different.” Mot. Vacate at 24. Giving
Parker’s pro se motion a liberal construction, see Gaylord, 829 F.3d at 508, this
statement can be read in context as implying that “[i]f counsel had properly
challenged the wiretap application,” Parker might have negotiated his plea
agreement “different[ly]” or perhaps might not have pleaded guilty at all. Mot.
Vacate at 24–26. Thus, the Court will treat Parker’s ineffective-assistance claim as
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relating to the negotiation of his plea agreement and therefore falling outside the
scope of the collateral-review waiver.
The Court now turns to address the merits of Parker’s ineffective-assistance
claim. For the reasons explained below, the claim fails even with the benefit of this
liberal construction.
B.
Merits of Parker’s Ineffective-Assistance Claim
Ineffective assistance of counsel is a Sixth Amendment violation that entitles
a defendant to relief under § 2255. Gaylord, 829 F.3d at 506–09. To establish a
claim for ineffective assistance of counsel, a defendant must show both that
counsel’s performance was so deficient that it could not be considered objectively
“reasonable[ ] under prevailing professional norms” and that the defendant suffered
prejudice as a result of counsel’s deficient performance. Strickland v. Washington,
466 U.S. 668, 687–88 (1984). The defendant bears “the burden of both proof and
persuasion” in establishing deficient performance and prejudice. United States v.
Davenport, 986 F.2d 1047, 1049 (7th Cir. 1993). When an ineffective-assistance
claim is premised on counsel’s failure to litigate a Fourth Amendment issue, “the
defendant must also prove that his Fourth Amendment claim is meritorious.”
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); United States v. Cieslowski, 410
F.3d 353, 360 (7th Cir. 2005). Additionally, when the defendant has pleaded guilty,
he must show prejudice by establishing “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); United States v. Carroll, 412 F.3d
787, 793 (7th Cir. 2005).
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Here, Parker has failed to show prejudice under Strickland because he has
not proved that a motion to suppress would have been meritorious. Kimmelman,
477 U.S. at 375. In support of his claim that counsel should have moved to suppress
intercepted phone calls, Parker makes two arguments.
First, he argues that
intercepted conversations should have been suppressed for failure to comply with 18
U.S.C. § 2518, which requires an application for a court-authorized wiretap to
include “a full and complete statement as to whether or not investigative procedures
have been tried and failed or why they reasonably appear to be unlikely to succeed
if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c); see also Mot. Vacate at 10,
22. According to Parker, the Government failed to meet this requirement because
“[t]he investigation officers never tried any other investigative procedure to
investigate [Parker] or Odell Givens” prior to intercepting phone calls. Mot. Vacate
at 10. But the wiretap applications demonstrate otherwise. Supporting affidavits
provide highly detailed explanations of “investigative procedures [that] ha[d] been
tried and failed,” 18 U.S.C. § 2518(1)(c), including procedures involving the use of
physical surveillance, confidential informants, pen registers, trap-and-trace devices,
mobile tracking devices, and video surveillance. See, e.g., Sept. 2011 Application,
Aff. ¶¶ 33–83; Gov’t Ex. F, May 2012 Application, Aff. ¶¶ 60–118, No. 12 CR 421,
ECF No. 332-6. The Court has been given no reason to doubt the veracity of these
detailed explanations in the supporting affidavits. Thus, Parker’s allegations of law
enforcement’s noncompliance with § 2518 are not a basis for finding his suppression
claim meritorious.
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Parker’s second argument is that law enforcement agents’ interceptions of
phone calls constituted an illegal search and seizure under the Fourth Amendment
because agents made fraudulent statements in the affidavits that were used to
obtain judicial authorization for the interceptions. Mot. Vacate at 3–6, 10–17. But
Parker does not come close to proving the merits of this argument either.
He
alleges repeatedly in his motion that agents “fabricated information,” “deceive[d]
the Chief Judge,” and gave “perjured testimony” to secure wiretaps, see Mot. Vacate
at 3, 6, 11–17, but he neither identifies any specific statement in any particular
wiretap application as fraudulent nor adduces any evidence tending to support
these bald assertions. 2 Rather, he alleges that unspecified wiretap applications
incorporated false statements that “conduct of Givens and Williams [was] criminal
in nature” and that “Givens was a subject calling to and from Nathaniel Hoskins[’s]
phone.” Id. at 24–25; see also id. at 3–4, 20.
It is true that the application seeking initial authorization to intercept calls
on Givens’s phone states in its summary of probable cause that “Givens is a heroin
At various points in the motion, Parker specifically refers to wiretap applications for
“target phone five” and “target phone six,” as well as a wiretap application from August 26,
2011. Mot. Vacate at 12–13, 15–17. But he does not point to any specific statements or
paragraphs in those applications as containing fabricated evidence. In any case, Parker
would not have standing to challenge interceptions made pursuant to these wiretap
applications, because he was neither “a person who was a party” to these intercepted
communications nor “a person against whom the interception[s] [were] directed.” 18 U.S.C.
§§ 2510(11), 2518(10)(a); see also United States v. Terry, 572 F.3d 430, 432 n.2 (7th Cir.
2009). The criminal complaint charging Parker provides a complete list of wiretap
applications for the phones on which Parker was intercepted, and none of these wiretap
applications appears on that list. Compl. ¶ 7 & n.1.
2
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supplier” and that “among his customers is Jettie Williams.” 3
Sept. 2011
Application, Aff. ¶ 11. But apart from his unsupported allegations of fraud, Parker
has provided no evidence tending to suggest that these statements were fabricated
by law enforcement agents. Moreover, Parker acknowledges in his own motion that
Williams purchased and used drugs. Mot. Vacate at 2–3 (“[Williams] was calling
around trying to borrow petty cash to get to work, and buy drugs.”); id. at 9 (“The
investigating officers never proved that Williams was selling drugs, but it was
pro[ved] that . . . he was using drugs.”). Williams’s use of drugs in Parker’s account
of the facts is entirely consistent with the passages of the wiretap application for
Givens’s phone stating that Williams purchased drugs from Givens. Sept. 2011
Application, Aff. ¶ 11. As such, Parker’s assertion that these sworn statements
were fraudulent is not only wholly unsupported, but also incompatible with the
facts woven into Parker’s own motion.
Parker’s assertion that agents obtained authorization to wiretap phones by
fraudulently stating that Givens was in contact with Hoskins is also unfounded.
Although the original application for Givens’s phone lists Hoskins and other
members of the Imperial Insane Vice Lords as investigative targets, see id. at ¶ 6,
the application explicitly states that “Givens has not been intercepted on either of
Hoskins’s phones,” and Hoskins is not mentioned in the summary of probable cause
Parker’s calls were intercepted on Givens’s phone pursuant to this wiretap
application, and those interceptions were subsequently used to support further
investigation of Parker. Compl. ¶ 15. Parker therefore has standing to challenge the
legality of the interceptions made pursuant to this application, assuming that this is indeed
one of the unspecified wiretap applications that he intends to challenge through his motion.
18 U.S.C. §§ 2510(11), 2518(10)(a).
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supporting the application. Id. at ¶¶ 11–12, 38 (emphasis added). Parker has not
identified, and the Court has not found, any statement in any wiretap application in
which the Government represented that Givens and Hoskins were in contact with
one another. As such, Parker’s allegation that agents made such a statement—
much less that they did so fraudulently—appears to be baseless. Because none of
Parker’s allegations provides a basis for finding that a motion to suppress would
have been meritorious, he has not established prejudice under Strickland, and his
claim for ineffective assistance of counsel therefore fails. Kimmelman, 477 U.S.
at 375.
Parker’s ineffective-assistance claim is deficient for another reason as well.
Even assuming for the sake of argument that Parker could prove a motion to
suppress would have been meritorious, his ineffective-assistance claim would still
fail because he has not established a reasonable probability that, but for counsel’s
alleged errors, he would have insisted on going to trial rather than pleading guilty.
Hill, 474 U.S. at 59.
The Seventh Circuit has repeatedly held that when a
defendant pleads guilty and later raises an ineffective-assistance claim, “a mere
allegation by the defendant that he would have insisted on going to trial is
insufficient to establish prejudice.” Cieslowski, 410 F.3d at 359 (quoting Berkey v.
United States, 318 F.3d 768, 772–73 (7th Cir. 2003)); see also Barker v. United
States, 7 F.3d 629, 633 (7th Cir. 1993). Rather, the defendant must “go further and
present objective evidence” in support of such an allegation. Cieslowski, 410 F.3d at
359. In this case, even with the benefit of a liberal construction, Parker’s motion
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presents at most only a threadbare allegation that he would not have pleaded guilty
if his attorney had moved to suppress the intercepted calls. See Mot. Vacate at 24.
The motion makes no mention of any objective evidence that might be used to
support this conclusory allegation. Accordingly, even if Parker could prove that a
motion to suppress would have been meritorious, the allegations in his motion
would still be insufficient to establish prejudice as required under Strickland. See
Hill, 474 U.S. at 59; Cieslowski, 410 F.3d at 359.
In sum, in order to prevail on his claim for ineffective assistance of counsel,
Parker must prove both that a motion to suppress the intercepted calls would have
been meritorious and that he would not have pleaded guilty but for counsel’s alleged
errors. Hill, 474 U.S. at 59; Cieslowski, 410 F.3d at 360. He has proved neither. As
such, Parker cannot establish that he was prejudiced by counsel’s performance. His
claim for ineffective assistance of counsel therefore fails, see Strickland, 466 U.S. at
687–88, and his § 2255 motion must be denied.
Conclusion
For the reasons stated herein, Parker’s motion to vacate his conviction and
sentence under § 2255 [1] is denied. The Court declines to issue a certificate of
appealability under Rule 11 of the Rules Governing Section 2255 Proceedings for
the United States District Courts, because Parker has not made a “substantial
showing of the denial of a constitutional right” such that reasonable jurists could
debate this Court’s resolution of the case. 28 U.S.C. § 2253(c)(2); Narvaez v. United
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States, 674 F.3d 621, 626 (7th Cir. 2011) (citing Slack v. McDaniel, 529 U.S. 473,
483–84 (2000)). This case is hereby terminated.
IT IS SO ORDERED.
ENTERED
12/2/16
__________________________________
John Z. Lee
United States District Judge
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