Fuller, Mark v. United States ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2369
MARK K. FULLER,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-C-080-S—John C. Shabaz, Judge.
____________
ARGUED APRIL 14, 2004—DECIDED FEBRUARY 18, 2005
____________
Before BAUER, COFFEY, and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Mark Fuller was charged with
making a false statement to a financial institution for
the purpose of influencing his application for an overdraft
protection loan in violation of 18 U.S.C. § 1014. He subse-
quently entered into a plea agreement and, after a hearing,
was sentenced to 46 months’ imprisonment and five years’
supervised release. Thereafter, he filed a motion to vacate
his sentence pursuant to 28 U.S.C. § 2255, arguing that his
trial counsel had rendered ineffective assistance at his
withdrawal of guilty plea and sentencing hearings. The
district court denied Fuller’s motion, ruling that his claims
were barred because they had been fully decided in his
direct appeal. We affirm.
2 No. 03-2369
I. Background
Fuller and his associate Larry Esser were (separately)
charged as participants in a fraudulent check scheme they
perpetrated from December 1997 to January 1998. Accord-
ing to their plan, Fuller opened a checking account at the
Commonwealth Credit Union (“CCU”) in Baraboo, Wiscon-
sin, under a fictitious business name, “Banner Freight,”
using false information. Thereafter, Fuller deposited seven
worthless checks for various amounts totaling some
$30,000. Fuller subsequently attempted to withdraw some
$22,000 from the newly-created unfunded account by
drawing checks payable to himself and several of Esser’s
fictitious businesses. After CCU discovered the fraud, it
took action to prevent most of Fuller’s withdrawals from
being paid out in cash to him. Of the $22,000 Fuller at-
tempted to withdraw, he was only able to obtain $5,501.68
in cash, an amount that represents the actual monetary loss
borne by CCU.
In March 1999, Fuller was arrested and indicted on one
count of making a false statement to the credit union for the
purpose of influencing his application for an overdraft
protection loan, 18 U.S.C. § 1014. He was released under
pretrial supervision. Fuller entered into a plea agreement
with the government and pled guilty to the charge on June
6, 1999. The trial judge accepted Fuller’s guilty plea
after ascertaining, during a plea colloquy hearing, that
his guilty plea was being entered into freely and volun-
tarily, that he understood the nature of the charge he
was pleading to, and that he fully understood the conse-
quences of his plea and the possible maximum sentence.
After the acceptance of Fuller’s guilty plea, the court
entered a conviction and set a sentencing date of August 18,
1999. Shortly thereafter, Fuller attended a presentence
No. 03-2369 3
interview and learned that he was ineligible for probation.1
In July of 1999, Fuller absconded and violated the terms of
his pretrial supervision, changed his place of residence
without informing his probation officer, departed from
the jurisdiction and failed to appear for his scheduled
sentencing. An arrest warrant was issued for Fuller as
a fugitive from justice. He was apprehended and ar-
rested some seven months thereafter, by United States
Marshals, in February of 2000, and returned before the
court. At that time, a new sentencing date of April 5, 2000
was set.
Prior to sentencing, Fuller filed a motion requesting
the withdrawal of his guilty plea, claiming that he had been
misled into pleading guilty by the prosecuting attorney and
his own trial counsel. Fuller alleged that the prosecutor had
promised he would receive a sentence of probation in
exchange for a plea of guilty, and further that his trial
counsel had failed to specifically advise him that he was
ineligible for probation. The court held a hearing on Fuller’s
allegation with his trial counsel, who stated that neither he
nor the prosecutor had promised Fuller probation. Fuller’s
counsel went on to advise the court that he had failed to
ascertain prior to Fuller’s pleading guilty whether he was
eligible or not for probation, and went on to explain to the
judge that he had told Fuller: “I sort of doubt that you’re
eligible for probation.” United States v. Fuller, 312 F.3d 287,
290 (7th Cir. 2002). Counsel went further and made clear
that it would have been improper for him to argue to the
court that Fuller had not entered his plea knowingly and
voluntarily, because he (Fuller) had been fully advised of
the nature of the crime charged and of his rights, as well as
1
A violation of § 1014 is a Class B felony, and under § 5B1.1(b)(1)
of the U.S. Sentencing Guidelines, “[a] sentence of probation may
not be imposed in the event the offense of conviction is a Class A
or B felony.”
4 No. 03-2369
all of the ramifications of his plea and a possible sentence
of up to thirty years’ imprisonment. Nonetheless, counsel
argued that the court should consider granting Fuller’s
motion to withdraw his plea on “judicial economy” grounds
because Fuller would likely appeal the court’s decision
“based on ineffective assistance of counsel.” After reviewing
the transcript of the plea hearing colloquy, the trial judge
denied Fuller’s withdrawal motion, determining that the
statements he made and the answers he gave to the judge’s
questions at the plea hearing made clear that he under-
stood the consequences of his plea, and thus he was pre-
cluded from withdrawing his plea.
After making this finding, the court proceeded to sentenc-
ing and set Fuller’s base offense level under the Sentencing
Guidelines at 6, see U.S.S.G. § 2F1.1 (1998),2 and increased
his offense level to 14 after imposing sentencing enhance-
ments for: 1) his intended financial loss to the credit union
(“at least $24,000, the amount deposited into the Common-
wealth Credit Union checking account”), see U.S.S.G. §
2F1.1(b)(1)(E) (1998); 2) his “more than minimal” planning
over the two-week period it took for him to open the
account, transfer the non-existent funds from Esser’s
accounts and draw the unfunded checks, see U.S.S.G. §§
1B1.1, cmt. n.1(f), 2F1.1(b)(2)(A) (1998); and 3) his obstruc-
tion of justice by absconding from pretrial supervision,
evading authorities and failing to appear for his sentencing
hearing, see U.S.S.G. § 3C1.1 (1998). Fuller’s counsel did
not object to any of the sentencing enhancements, which
when combined with Fuller’s base offense level and criminal
history category of 6, resulted in a sentencing range under
2
Fuller was sentenced under the 1998 Sentencing Guidelines
(effective date November 1, 1998). Section 2F1.1 was deleted by
consolidation with § 2B1.1, effective November 1, 2001. See
U.S.S.G. § 2F1.1, historical note (2001). To avoid confusion, we
will refer to the 1998 numerical designations.
No. 03-2369 5
the guidelines of 37 to 46 months’ imprisonment. The trial
judge chose to sentence Fuller at the top of this guideline
range, to 46 months’ imprisonment, and also imposed a five-
year term of supervised release.
Fuller filed a direct appeal from his conviction, which was
previously addressed by this Court in United States
v. Fuller, 312 F.3d 287. In his direct appeal, Fuller, now
represented by a substitute appellate counsel, contended
that his former counsel had a conflict of interest that
caused him to render ineffective assistance during the
withdrawal of his guilty plea hearing. Fuller claimed that
his attorney failed to advise him that he was ineligible
for probation before he entered his plea of guilty, even
though in the record it is most clear that his attorney did
advise Fuller that he “doubt[ed Fuller was] eligible for
probation.” Id. at 290. Nonetheless, Fuller argued that
his trial counsel’s “interest” was “in shielding himself
from a malpractice suit based on giving his client inade-
quate advice [, which] competed with his interest in zeal-
ously arguing [the] motion.” Fuller, 312 F.3d at 292. We
found no merit to this argument and affirmed the trial
court’s judgment, holding that Fuller failed to establish that
his prior counsel had a conflict of interest that adversely
affected his performance in arguing the motion, and that
his performance did not rise to the level of improper or
inadequate under the Strickland standard. See id. at 293.
Subsequently, Fuller filed a § 2255 motion in an at-
tempt to vacate his sentence, claiming once again that his
trial counsel had a conflict of interest that caused him
to render ineffective assistance at the hearing concern-
ing the withdrawal of his guilty plea, and furthermore
that his trial counsel was ineffective for failing to object
to the sentencing enhancements. The court denied his
motion, concluding that his claims were barred by the law
of the case, “because they were both raised and decided
on direct appeal.” We granted a certificate of appealability
6 No. 03-2369
to consider only: 1) whether the Supreme Court’s decision
in Massaro v. United States, 538 U.S. 500 (2003), impacts
the district court’s decision with respect to Fuller’s con-
flict of interest claim; and 2) whether the court correctly
ruled that, having raised an ineffective assistance of
counsel claim based on facts separate and distinct from
those presented on direct appeal, Fuller is precluded
from collaterally attacking counsel’s performance at sen-
tencing.
II. Analysis
When reviewing a district court’s decision to deny a
§ 2255 petition, we employ a clear error standard when
dealing with factual matters, and review all questions
of law de novo. Galbraith v. United States, 313 F.3d 1001,
1006 (7th Cir. 2002).
A. Fuller’s Conflict-of-Interest Claim
As an initial matter, we note that the trial court correctly
determined that Fuller’s conflict-of-interest claim was
barred by the law of the case. See United States v. Mazak,
789 F.2d 580, 581 (7th Cir. 1986). In United States v. Fuller,
312 F.3d at 291-93, we addressed the merits of Fuller’s
claim, holding that his “[d]efense counsel may have [con-
ceivably] faced a potential conflict of interest, but he never
let the potential conflict ripen into an actual conflict,” and
that “defense counsel’s performance at th[e] hearing was
[constitutionally] adequate.” Id. at 292. In the context of §
2255 petitions, the “law of the case” doctrine dictates that
“once this court has decided the merits of a ground of
appeal, that decision establishes the law of the case and is
binding on a [court] asked to decide the same issue in a
later phase of the same case, unless there is some good
reason for reexamining it.” Mazak, 789 F.2d at 581. Thus,
No. 03-2369 7
Fuller is barred from relitigating his conflict-of-interest
claim in his § 2255 motion. See Harris v. United States, 366
F.3d 593, 595 (7th Cir. 2004); Daniels v. United States, 26
F.3d 706, 711-12 (7th Cir. 1994).
Fuller requests that we invoke an exception to the law-of-
the-case doctrine and grant him a second chance on his
conflict-of-interest claim. As we have noted previously,
“an intervening change in law” may, under very limited
circumstances, warrant reexamination of an issue that
we have decided during an earlier phase in a case. Mazak,
789 F.2d at 581; see also White v. United States, 371 F.3d
900, 902 (7th Cir. 2004). Fuller argues that such an
“intervening change in law” has occurred since he initially
brought his conflict-of-interest claim on direct appeal,
relying on the Supreme Court’s decision in Massaro, and,
thus, our decision in his direct appeal should be reexam-
ined. We disagree.
At the time Fuller filed his direct appeal, the law in this
circuit made ineffective-assistance-of-counsel claims subject
to the same procedural default rules as any other issue,
holding that such claims could not be raised for the first
time in a collateral proceeding under § 2255 unless the
petitioner was able to demonstrate “good cause for failing to
raise the issue [on direct appeal] and actual prejudice.”
Galbraith, 313 F.3d at 1006. Accordingly, prior to Massaro,
when an appellant had substitute counsel on direct appeal
and presented an ineffective-assistance-of-counsel claim
based entirely on a trial record “sufficiently developed to
allow review of the issue,” Fuller, 312 F.3d at 291, the
appellant was required to raise the issue on direct appeal or
risk procedural default. Guinan v. United States, 6 F.3d
468, 471 (7th Cir. 1993). In Massaro, the Supreme Court
concluded that ineffective-assistance claims should not be
subject to “the usual procedural default rule,” and held that
“an ineffective-assistance-of-counsel claim may be brought
in a collateral proceeding under § 2255, whether or not the
8 No. 03-2369
petitioner could have raised the claim on direct appeal.”
Massaro, 538 U.S. at 504; see also Richardson v. United
States, 379 F.3d 485, 487 (7th Cir. 2004). Fuller contends
that he only presented his conflict-of-interest claim on
direct appeal so that he would avoid the risk of procedurally
defaulting it, and thus, in light of Massaro’s holding that
procedural default rules do not apply to ineffective-assis-
tance claims, he is entitled to a second opportunity to
litigate his claim—this time with the benefit of an eviden-
tiary hearing in order that he might further develop the
claim. Because Massaro does not alter the landscape with
respect to ineffective-assistance claims that were raised
on direct appeal, we hold that Fuller’s argument is with-
out merit.
We are convinced that Massaro has no relevance to the
case at bar. Although Massaro prohibits courts from
applying procedural default rules to bar ineffective-assis-
tance claims brought for the first time in collateral proceed-
ings under § 2255, it does not speak to the issue presented
in Fuller’s motion; whether an ineffective-assistance claim
previously considered on direct appeal may subsequently be
reconsidered in a § 2255 motion. Massaro does not hold that
ineffective assistance claims must be brought on collateral
appeal, nor does it disturb the rule in this circuit that bars
relitigation of ineffective-assistance claims that have been
raised and addressed on direct appeal. Massaro, 538 U.S. at
504-05, 508. In fact, Massaro specifically stated that
“questions [that] may arise in [§ 2255 motions] concerning
the conclusiveness of determinations made on the
ineffective-assistance claims raised on direct appeal . . . are
not before us.” Id. at 508-09. Thus, we do not agree that
Massaro represents an “intervening change in law . . . [that]
warrant[s] reexamination” of Fuller’s claim of conflict of
interest. Mazak, 789 F.2d at 581.
Also, Fuller’s contention that his reason for bringing
the conflict-of-interest claim on direct appeal was to
No. 03-2369 9
avoid the risk of procedurally defaulting on the claim is
clever and most disingenuous in light of the contrary
representations that he made in his brief on direct ap-
peal. As Fuller explained, he was raising the issue on direct
appeal because he believed the record at the time was
sufficiently developed to support his claim, stating unequiv-
ocally that: “There is adequate evidence of counsel’s ineffec-
tiveness in the record on appeal in this matter, therefore
allowing the Court to consider this issue on direct appeal.”
Moreover, Fuller made this representation despite his
acknowledging the longstanding practice of this Court to
discourage appellants from raising “claims of ineffective
assistance of counsel on direct appeal because the record is
often not sufficiently developed to support the ineffective-
ness issue.” See, e.g., United States v. Trevino, 60 F.3d 333,
338 (7th Cir. 1995). It is clear from the record that Fuller
voluntarily chose to raise this claim on direct appeal, and as
a consequence deliberately of his own choice squandered his
opportunity to reserve it for collateral review. Notably, the
Massaro court pointed out and made very clear that its
holding had no bearing on cases such as Fuller’s; cases in
which substitute appellate counsel “consider[s] it advisable
to raise the issue [of trial counsel’s ineffectiveness] on direct
appeal,” and explained that “[w]e do not hold that
ineffectiveness-assistance claims must be reserved for
collateral review.” Massaro, 538 U.S. at 508. Accordingly,
the Supreme Court’s decision in Massaro gives us no reason
to disturb the law of the case and grant Fuller a second
opportunity to litigate his conflict-of-interest claim in a
collateral proceeding under § 2255.
B. Fuller’s Ineffective Assistance at Sentencing
Claim
Fuller next argues that the district court erred in conclud-
ing that his ineffective-assistance-of-counsel claim regard-
10 No. 03-2369
ing his trial counsel’s performance at his sentenc-
ing hearing was barred by the law of the case. Because
Fuller did not raise this issue in his direct appeal, see
Fuller, 312 F.3d 287, we must agree with Fuller that the
law of the case doctrine does not apply to this prong of his
ineffective-assistance claim. In his direct appeal, Fuller
raised only the conflict-of-interest claim regarding his
plea which we determined had no merit, see Fuller, 312
F.3d at 293, and, as we have just discussed, he is now
barred from relitigating in his § 2255 motion. However,
Fuller did not raise the issue of his trial counsel’s al-
leged ineffectiveness at the sentencing hearing, and we
have not previously addressed or “decided the merits
of [this] ground of appeal,” Mazak, 789 F.2d at 581. See,
e.g., International Union of Operating Eng’rs, Local Union
103 v. Indiana Constr. Corp., 13 F.3d 253, 256 (7th Cir.
1994).
As an alternate ground for denying Fuller’s claim that his
counsel was ineffective, the district judge concluded that
Fuller had procedurally defaulted the claim because he had
failed to raise it on direct appeal. However, as the govern-
ment concedes, and we agree, after the Massaro decision,
procedural default can no longer serve as a reason for
dismissing this claim from Fuller’s § 2255 motion.3 See
Cooper v. United States, 378 F.3d 638, 640 n.1 (7th Cir.
2004); Richardson, 379 F.3d at 487. Nonetheless, there is no
reason to remand Fuller’s § 2255 motion to the district
court for an evidentiary hearing unless Fuller has ade-
quately alleged “facts that, if proven, would entitle him to
3
Although Massaro was issued after Fuller filed his § 2255
motion, the decision is applicable to our analysis as “[i]t is well
established that a court generally applies the law in effect at
the time of its decision, and that if the law changes while the case
is on appeal the appellate court applies the new rule.” Richardson,
379 F.3d at 487.
No. 03-2369 11
relief,” and in this respect he has failed. Galbraith, 313 F.3d
at 1009 (quoting Stoia v. United States, 22 F.3d 766, 768
(7th Cir. 1994)). Upon review, we are convinced that Fuller
has failed to present facts necessary to substantiate his
ineffective-assistance claim and thus cannot meet the
threshold requirement for entitlement to an evidentiary
hearing, and we affirm the district court’s denial of his
motion. See Berkey v. United States, 318 F.3d 768, 774 (7th
Cir. 2003); Galbraith, 313 F.3d at 1010.
In order to succeed on a claim of ineffective assistance
of trial counsel at the sentencing hearing, Fuller must
above all demonstrate that his attorney performed in a
deficient manner during the hearing, Strickland v. Wash-
ington, 466 U.S. 668, 687 (1984), and then prove “that
but for his counsel’s unprofessional error, there is a reason-
able probability that the results [of his sentencing hearing]
would have been different.” Berkey, 318 F.3d at 774. Fuller
argues that his counsel performed deficiently by failing to
object to the trial court’s imposition of sentencing enhance-
ments for: 1) intended financial loss to the credit union as
a result of his fraudulent-check scheme; 2) more than
minimal planning in carrying out the scheme; and 3)
obstruction of justice for failing to show up for his sentenc-
ing hearing and absconding from the court’s jurisdiction for
a period of seven months until apprehended on a warrant
as a fugitive from justice.4 Fuller has failed to elucidate for
us any legitimate objections his trial counsel failed to make
4
Fuller does not argue that his trial counsel was ineffective for
failing to anticipate Blakely v. Washington, 124 S. Ct. 2531 (2004)
and United States v. Booker, 2005 WL 50108 (U.S. Jan. 12, 2005),
and object on Sixth Amendment grounds to the trial court’s
imposition of sentencing enhancements. Indeed, “no such argu-
ment would be tenable.” United States v. Smith, 241 F.3d 546, 548
(7th Cir. 2001) (trial counsel could not be ineffective for failing to
anticipate Apprendi v. New Jersey, 530 U.S. 466 (2000)).
12 No. 03-2369
to the sentencing enhancements imposed by the trial court
that would have resulted in a more favorable sentence.
The appellant-petitioner, Fuller, claims that his trial
counsel should have objected to the court’s enhancing his
sentence for an intended financial loss to the credit union,
see U.S.S.G. § 2F1.1 (1998), because there was no basis for a
finding that “the intended loss was at least $24,000.”5
Fuller contends that CCU’s actual loss was only $5,501.68
(the amount of the withdrawals Fuller made from the
Banner Freight account before CCU discovered his
fraud), and that there was no evidence in the record to
demonstrate that he “intended to inflict loss [on the
credit union] in the full amount of the checks he deposited,”
some $30,000. However, in a prosecution for a fraudulent-
check scheme “the total amount of [unfunded] deposits is an
acceptable calculation of intended loss.” United States v.
Sykes, 357 F.3d 672, 675 (7th Cir. 2004); see also United
States v. Kipta, 212 F.3d 1049, 1052 (7th Cir. 2000).6 “[T]he
relevant inquiry is not ‘How much would the defendants
probably have gotten away with?’, but, rather, ‘How many
dollars did the culprits’ scheme put at risk?’.” United States
v. Bonanno, 146 F.3d 502, 509-10 (7th Cir. 1996). Said
differently, simply because the credit union detected his
fraudulent activity before he was able to withdraw the
5
Fuller’s PSR sets forth that he deposited checks totaling over
$30,000 in the account, but the PSR uses this $24,000 figure
in calculating his intended loss for purposes of sentencing.
The difference is irrelevant under the guidelines however, as
U.S.S.G. § 2F1.1(b)(1)(E) states that four offense levels are to
be added when the loss is more than $20,000 but less than
$40,000.
6
Fuller also contends that his trial counsel could have objected
on the basis that Fuller did not know the checks were fraudulent.
Such an objection would be beyond frivolous, given the fact
that Fuller had already pleaded guilty to his role in the scheme.
No. 03-2369 13
entire $30,000 in cash from the Banner Freight account is
no reason to hold him accountable only for the $5,501.68
that he managed to withdraw. Furthermore, the district
court was required to increase Fuller’s sentence “based on
the greater value of either the actual loss suffered by the
[credit union] or the intended . . . loss which [Fuller]
attempted to inflict on [the credit union].” United States v.
Saunders, 129 F.3d 925, 930 (7th Cir. 1997). Thus the trial
judge correctly utilized the amount of fraudulent checks
Fuller deposited in the Banner Freight account (some
$30,000) when determining that the loss Fuller intended to
confer on the credit union was “at least $24,000,” and, in
addition, the judge was required to use this intended loss
calculation ($24,000) rather then the actual loss caused by
Fuller’s scheme ($5,501.68) when enhancing his sentence.
See Kipta, 212 F.3d at 1052. Contrary to Fuller’s argument,
the court’s intended loss calculation was well-supported
by the record.
The appellant-petitioner, Fuller, next argues that his
counsel should have objected to the trial court’s imposi-
tion of a sentencing enhancement for more than minimal
planning because the judge did not find that he had
abused a position of trust. Fuller contends that “[i]n order
for the more than minimal planning to apply . . . . abuse
of trust must be established.” This argument mis-
construes the law. An upward adjustment for more than
minimal planning in a fraudulent-check scheme is ap-
propriate “where: 1) there is more planning than is typ-
ical for commission of the offense in simple form; 2)
steps are taken to conceal the offense; or 3) the criminal
acts, each of which are not purely opportune, are re-
peated over a period of time.” United States v. Sonsalla, 241
F.3d 904, 907 (7th Cir. 2001). Abuse of trust is not required
as an element in an adjustment for more than minimal
planning. Cf. United States v. Allen, 201 F.3d 163, 167 (2d
14 No. 03-2369
Cir. 2000) (enhancements for abuse of trust and more than
minimal planning address separate facets of a defendant’s
conduct).
Fuller has failed to advance any specific valid ground
upon which his counsel should have objected to the trial
court’s enhancement for obstruction of justice. Fuller
failed to appear at his initial sentencing hearing and had
absconded from the court’s jurisdiction for some seven
months until found by the U.S. Marshal service. A criminal
defendant who evades authorities and fails to appear for a
sentencing hearing has obstructed justice; and “[t]o hold
otherwise would condone direct disobedience of a court’s
conditional release order.” United States v. Williams, 374
F.3d 941, 948 (10th Cir. 2004); see also United States v.
Bolden, 279 F.3d 498, 502-03 (7th Cir. 2002).
Based on this record and the arguments he advances,
we conclude that Fuller has failed to present any non-
frivolous objections that his trial counsel failed to make
to the sentencing enhancements imposed by the trial
judge that would have resulted in a more favorable sen-
tence. Because a defendant’s lawyer has an obligation to be
truthful and forthright with the court, he has “no duty to
make a frivolous argument,” United States v. Rezin, 322
F.3d 443, 446 (7th Cir. 2003) (emphasis in original), and
indeed is barred by the rules of professional ethics from
doing so, see Smith v. Robbins, 528 U.S. 259, 272 (2000). “A
lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis . . . for
doing so that is not frivolous.” MODEL RULES OF PROF’L
CONDUCT R. 3.1. We are convinced that there is no merit to
Fuller’s claim that his trial counsel’s performance was
deficient. Furthermore, he has failed to “point to any
evidence he would have presented that would create a
reasonable probability that the result of [his sentencing]
proceedings would have been different,” and thus cannot
demonstrate any possibility that he suffered prejudice as a
result of his trial counsel’s performance. Berkey, 318 F.3d at
No. 03-2369 15
774. Accordingly, Fuller’s claim that his counsel rendered
ineffective assistance at sentencing stands unsupported by
“ ‘actual proof of [his] allegations,’ ” and he thus “cannot
meet the threshold requirement for securing an evidentiary
hearing” on his § 2255 motion. Galbraith, 313 F.3d at 1009.
The district court’s decision to deny Fuller’s motion is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-18-05