The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Pending is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255.*fn1 The United States of America has responded.*fn2
On January 13th, 2004, a jury found Petitioner guilty of eighteen counts related to production and possession of fraudulent documents, possession of document-making implements, social security fraud, theft of trade secrets (software), computer fraud, identity theft, possession of ammunition by an illegal alien, and making false statements.*fn3 On September 9, 2004, I sentenced Petitioner to 96 months in prison and ordered him to pay restitution in the amount of $1,405,694.00.*fn4 Petitioner filed an appeal, which was denied.*fn5 The Eighth Circuit Court of Appeals denied Petitioner's Motion for a Rehearing En Banc, and The United States Supreme Court denied Petitioner's request for review.*fn6
Petitioner asserts five grounds for relief:(1) ineffective assistance of counsel at all stages of trial; (2) prosecutorial misconduct; (3) scientific impossibility of evidence; (4) Petitioner was not an illegal alien; (5) ineffective assistance of counsel on appeal, in that counsel failed to raise the issues in claims (2), (3), and (4).*fn7
A. Claims (2), (3), and (4)
Petitioner has procedurally defaulted on claims (2), (3), and (4) by not raising them on direct appeal.*fn8 Where a petitioner has procedurally defaulted a claim by failing to raise it on direct appeal, the claim may be raised in a habeas petition only if the petitioner can first demonstrate either "cause" and actual "prejudice,"*fn9 or that he is "actually innocent."*fn10 Here, Petitioner makes no claim of actual innocence. Additionally, Petitioner makes no claim of cause or prejudicewithin his explanation of claims (2), (3), and (4).
Accordingly, I will consider the merits of (2), (3), and (4) only to the extent that they provide the basis of Petitioner's claim of ineffective assistance of counsel on appeal.
B. Ineffective Assistance of Counsel, Generally
To prevail on a claim of ineffective assistance of counsel, Petitioner must first show that his counsel's performance fell below an objective standard of reasonableness.*fn11 Petitioner must identify the acts or omissions of counsel that are alleged to have been the result of unreasonable professional judgment.*fn12 The court then must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.*fn13 Petitioner faces a great burden in that "judicial scrutiny of a counsel's performance is highly deferential" and "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."*fn14
Even if a court finds deficient performance of counsel, the petitioner also must establish prejudice.*fn15 To establish prejudice, a petitioner must demonstrate that, but for his counsel's errors, there is a reasonable probability the result of the proceeding would have been different.*fn16
So, the test has two parts: (1) deficient performance and (2) prejudice. If Petitioner fails to establish either part of this test, I need not ...