Ellzey v. U.S.

• Decision Date: 08 July 2002
• Docket Number: No. 00-2124.,00-2124.
• Citation: 210 F.Supp.2d 1046
• Parties: William ELLZEY, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Central District of Illinois

210 F.Supp.2d 1046

William ELLZEY, Petitioner, v. UNITED STATES of America, Respondent.

No. 00-2124.

United States District Court, C.D. Illinois. Danville/Urbana Division.

July 8, 2002.

COPYRIGHT MATERIAL OMITTED

William Ellzey, Terre Haute, IN, pro se.

Colin S. Bruce, Esq., Office of U.S. Attorney, Urbana, IL, for Respondent.

ORDER

McCUSKEY, District Judge.

On May 8, 2000, Petitioner William Ellzey filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (# 1) pursuant to 28 U.S.C. § 2255. Respondent filed a Response (# 17) on January 22, 2002, and Petitioner filed his Reply (# 20) on February 12, 2002. Petitioner's motion is now DENIED.

FACTS

Petitioner was convicted on May 15, 1998, of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1). The Seventh Circuit affirmed the conviction on May 10, 1999. United States v. Ellzey, 182 F.3d 923 (7th Cir. 1999). Petitioner next filed a 28 U.S.C. § 2255 motion on May 8, 2000. The motion, as supplemented by various amendments previously allowed by this court, alleges that Petitioner was denied his Sixth Amendment right to effective counsel at trial, and that his sentencing was unconstitutional according to the recent case of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Petitioner argues in various motions that his counsel was ineffective on the grounds that he: (1) failed to call Petitioner as a defense witness after Petitioner advised him that he wished to testify; (2) did not encourage Petitioner to accept a government plea bargain; (3) failed to move during sentencing for a downward departure based on Petitioner's diminished mental capacity; (4) failed to move for a downward departure based on a disparity between the sentences of Petitioner and his co-conspirators; (5) failed to object to the sufficiency of the superseding indictment, which did not state the quantity of drugs allegedly involved in the crime; (6) did not object to the indictment's failure to include an essential element of the offense of aiding and abetting; and (7) did not object to the sufficiency of the superseding indictment, or to the jury instructions, on the ground that the offense of conspiracy requires a specific co-conspirator to be identified by name. Petitioner also asserts that the cumulative effect of counsel's errors acted to deprive him of due process of law.

On August 30, 2000, Petitioner supplemented his original motion to include an additional claim that his conviction was unconstitutional under Apprendi, in which the Supreme Court determined that all evidence leading to a sentence exceeding the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Petitioner argues that because the quantity of drugs was not specified in the superseding indictment, he could not constitutionally be sentenced to life imprisonment —a term that exceeds the statutory maximum for a minimal amount of drugs under 21 U.S.C. § 841(b)(1)(C).

Respondent filed a Motion to Dismiss (# 3) on May 12, 2000, arguing that the § 2255 motion was barred by the statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996. This motion was denied on November 16, 2001(# 12). Respondent then filed a Response (# 17) on January 22, 2002, to which Petitioner filed his Reply (# 20) on February 12, 2002. Petitioner also petitioned the court for appointment of counsel (# 13) on December 17, 2001, and renewed this petition on February 12, 2002(# 21).

ANALYSIS

I. Requirement of a Hearing and Counsel

Under 28 U.S.C. § 2255, an evidentiary hearing is required if the record contains a conflict on an issue of fact. Taylor v. United States, 287 F.3d 658, 659 (7th Cir. 2002). However, when the court has "sufficient information, based on its observations, the record, and the law" to rule on an issue, no hearing is necessary. Rodriguez v. United States, 286 F.3d 972, 987 (7th Cir.2002). For reasons explained herein, Petitioner alleges no factual allegations that warrant an evidentiary hearing.

Because no hearing is allowed, Petitioner has no statutory right to an attorney, and the appointment of counsel is therefore a matter of the court's discretion. Oliver v. United States, 961 F.2d 1339, 1343 (7th Cir.1992), cert. denied, 506 U.S. 976, 113 S.Ct. 469, 121 L.Ed.2d 376 (1992). This court denies Petitioner's request for appointed counsel because his claims are without merit, and because further investigation would be futile. See Wilson v. Duckworth, 716 F.2d 415, 418 (7th Cir.1983). Furthermore, Petitioner has already done an adequate job of articulating his claims, which are relatively straightforward questions of law that rely on facts readily available to the court. See Wilson, 716 F.2d at 418. The Petition for Appointment of Counsel is therefore denied.

II. Ineffective Assistance of Counsel

In order to demonstrate ineffective assistance of counsel, Petitioner must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, Petitioner must show: (1) that "counsel's representation fell below an objective standard of reasonableness," and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 698, 104 S.Ct. 2052. This court must give a "strong presumption that counsel rendered reasonably effective assistance," United States v. Limehouse, 950 F.2d 501, 503 (7th Cir.1991), cert. denied, 504 U.S. 918, 112 S.Ct. 1962, 118 L.Ed.2d 563 (1992) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

A. The Right to Testify

Petitioner first alleges that although he told his defense counsel that he wished to testify at trial, his counsel rested without calling him as a witness. The right to testify on one's own behalf is a fundamental right that counsel cannot waive without a client's consent. Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir.1988), cert. denied, 488 U.S. 841, 109 S.Ct. 110, 102 L.Ed.2d 85 (1988) (holding that the right to testify is protected by the Fifth, Sixth and Fourteenth Amendments). An attorney may advise a client against testifying, but may not prohibit the client from doing so. Galowski v. Murphy, 891 F.2d 629, 636 (7th Cir.1989), cert. denied, 495 U.S. 921, 110 S.Ct. 1953, 109 L.Ed.2d 315 (1990). Therefore, if counsel did indeed fail to call Petitioner to the stand after he had expressed his wish to testify, the first prong of Strickland would be satisfied. See United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.1984), cert. denied, 475 U.S. 1064, 106 S.Ct. 1374, 89 L.Ed.2d 600 (1986) ("If a defendant insists on testifying, however irrational that insistence might be from a tactical viewpoint, counsel must accede.").

However, Petitioner cannot meet the second Strickland prong — actual prejudice — because he does not explain how he would have testified or what he could have said to mitigate the overwhelming weight of the evidence against him. The Seventh Circuit has held that a "bare suggestion" in an affidavit that a defendant's testimony would have changed the outcome of a trial is insufficient to meet the second prong of the Strickland test, or to require an evidentiary hearing on the subject. Donovan v. United States, 1996 WL 735591, at *5 (7th Cir.1996). See also Underwood v. Clark, 939 F.2d 473, 476 (7th Cir.1991) ("Some greater particularity is necessary — and also we think some substantiation is necessary, such as an affidavit from the lawyer who allegedly forbade his client to testify — to give the claim sufficient credibility to warrant a further investment of judicial resources in determining the truth of the claim."). This ground for relief is therefore denied without a hearing. See Wilson v. United States, 149 F.Supp.2d 1045, 1052 (N.D.Ind.2001) (denying an evidentiary hearing for a petitioner who presented only a similar affidavit).

B. The Plea Agreement

Petitioner next alleges that his counsel was ineffective for failing to advise him to accept a proffered government plea agreement. Petitioner's co-defendant, Maurice Cole, accepted such an agreement, as did others indicted on charges stemming from the same conspiracy. As a result, these defendants received significantly lower sentences, while Petitioner was tried, convicted, and sentenced to life in prison.

Criminal defendants have the right to the effective assistance of counsel in deciding whether to accept or reject a government plea agreement. Toro v. Fairman, 940 F.2d 1065, 1067 (7th Cir.1991), cert. denied, 505 U.S. 1223, 112 S.Ct. 3038, 120 L.Ed.2d 907 (1992). The Seventh Circuit has considered very few cases of attorney incompetence involving rejection of plea agreements. Paters v. United States, 159 F.3d 1043, 1046 (7th Cir.1998). The cases establish, however, that Petitioner has failed to show the prejudice necessary to satisfy the second prong of Strickland, which in cases of rejected plea agreements requires Petitioner to demonstrate: "(1) through objective evidence that (2) there is a reasonable probability that he would have accepted the alleged proposed plea agreement absent defense counsel's advice." Paters, 159 F.3d at 1046. See also Toro, 940 F.2d at 1068.

Although the court in Paters found sufficient objective evidence to warrant an evidentiary hearing, the present case is distinguishable in several ways. In Paters, the petitioner submitted additional affidavits from his parents. Paters, 159 F.3d at 1047. In contrast, Petitioner has presented no evidence other than his own self-serving affidavit, which, although made under penalty of perjury, is in itself insufficient under Toro to warrant a hearing. Toro, 940 F.2d at 1068. Additionally, in Paters the government conceded the petitioner's version of the facts. Paters, 159 F.3d at 1045. Although in the present case Respondent altogether fails...