MEMORANDUM OPINION AND ORDER REGARDING PETITIONER’S MOTION PURSUANT TO SECTION 2255
MARK W. BENNETT, U.S. DISTRICT COURT JUDGE.
TABLE OF CONTENTS
I. INTRODUCTION ......................................... 2
A. The Criminal Proceedings ............................... 2
B. The § 2255 Motion ................................... 5
II. LEGAL ANALYSIS ....................................... 5
A. Standards For § 2255 Relief ............................. 5
B. Procedural Matters ................................... 8
1. Preliminary matters ............................. 8
2. Procedural default ............................. 8
C. Ineffective Assistance Of Counsel .......................... 9
1. Applicable standards ............................ 9
2. Failure to argue against U.S.S.G. § 2B1.1(b)(10) enhancement ................................ 12
3. Failure to adequately investigate Rogers’s mental health .... 20
4. Failure to argue against the motion for upward departure ... 24
III. CONCLUSION ........................................ 26
This case is before me on petitioner Isom Daniel Rogers’s Pro Se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 2), filed on March 29, 2012. Rogers claims that his trial counsel provided him with ineffective assistance in various ways. The respondent denies that Rogers is entitled to any relief on his claims.
A. The Criminal Proceedings
On May 6, 2009, Rogers was charged by a multiple-count Superseding Indictment (Crim. docket no. 21) with five counts of bank fraud via a check cashing scheme. On May 18, 2009, Rogers appeared in front of United States Magistrate Judge Jon S. Scoles to plead not guilty to the Indictment. See Crim. docket no. 36.
On July 1, 2009, Rogers appeared before Judge Scoles to change his plea to guilty, pursuant to a plea agreement, to counts four and five of the Superseding Indictment. See Crim. docket no. 68. On July 1, 2009, Judge Scoles filed his Report And Recommendation Concerning Pleas Of Guilty, recommending acceptance of Rogers’s guilty pleas. See Crim. docket no. 70. Chief Judge Linda R. Reade filed an Order Regarding Magistrate’s Report And Recommendation Concerning Defendant’s Guilty Pleas, accepting Rogers’s guilty pleas, on July 1, 2009. See Crim. docket no. 73.
On March 31, 2010, Rogers, by counsel, filed a Motion For New Counsel (Crim. docket no. 210), requesting the court to schedule a sentencing hearing, appoint new counsel, and stating that he anticipated that there would be five issues at sentencing, including “whether there should be a two-level enhancement for production or trafficking of an unauthorized or counterfeit access device pursuant to U.S.S.G. § 2B1.1(b)(10)(B)”. See Crim. docket no. 210. On April 12, 2010, a hearing was held before Judge Scoles regarding Rogers’s Motion For New Counsel. See Crim. docket no. 213. Judge Scoles entered an Order (Crim. docket no. 214), summarily denying Rogers’s Motion For New Counsel, on April 12, 2010. Rogers then, by counsel, filed a Renewed Motion To Schedule Sentencing Hearing (Crim. docket no. 215), on April 16, 2010.
On October 13, 2010, the Prosecution filed a Sentencing Memorandum And Motions For Upward Departure and Upward Variance (Crim. docket no. 314). The Prosecution argued that an upward departure was appropriate for under-representation of Rogers’s criminal history based on his extensive history of violent assaults, particularly assaults against women. See Crim. docket no. 314, at 5. The Government also sought an upward variance based on Rogers’s history and characteristics, specifically the allegation that Rogers had previously provided false information to the court at the sentencing of another defendant and the allegation that Rogers had made threats against a United States district court judge. See Crim. docket no. 314, at 8. The Prosecution also objected to giving Rogers a two-level reduction for acceptance of responsibility. See Crim. docket no. 314, at 11.
On October 13, 2010, Rogers, by counsel, filed a Sentencing Memorandum (Crim. docket no. 315), in which he withdrew his objection to paragraphs 42 and 43 of the PSIR. These two sections provided for application of a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(10)(B), for use of an “access device.” See Third Revised Presentence Investigation Report at 15. Rogers’s initial objection to these paragraphs stated “[h]e does not believe the checks meet the definition of an access device.” Crim. docket no. 196. Rogers, however, maintained his objection to paragraphs 44 and 45 of the PSIR, which argued that a three-level role enhancement would be appropriate, and argued, instead, that a two-level role enhancement would be proper in his case. See Crim. docket no. 315.
Rogers appeared before me on October 21, 2010, for a sentencing hearing. See Crim. docket no. 324. I dismissed counts one, seven, and nine of the Superseding Indictment pursuant to the plea agreement, and found that Rogers’s total offense level was 18 with a criminal history category of V, for a United States Advisory Guideline range of 51 to 63 months. See Sent. Trans. at 160. I determined that a three-level enhancement, rather than a two-level enhancement, was appropriate for Rogers’s role in the offense. See Sent. Trans. at 121. I denied any reduction for acceptance of responsibility based on Rogers’s prior provision of false testimony in another inmate’s sentencing hearing, and granted the Prosecution’s motion for upward variance. See Sent. Trans. 123 and 160. Without discussing the Government’s motion for upward departure, other than to say that I would have reached the same sentence pursuant to a departure analysis, I determined that, given Rogers’s prior history for violence, specifically against women, an upward variance to 120 months, from the guideline range of 51 to 63 months, was appropriate. See Sent. Trans. 160-163. I indicated that I was granting an upward variance solely because of Rogers’s history of violence, and no other reason. See Sent. Trans. 161. However, in determining the extent of the variance from the advisory guidelines, I considered the degree to which the imposed sentence should vary from the guidelines, and considered that the sentence should not vary upward to the statutory maximum of thirty years because Rogers was currently being sentenced for a “pretty modest bank fraud case.” Sent. Trans. 149.
Rogers, by counsel, filed a Notice of Appeal (Crim. docket no. 327), to the United States Court of Appeals for the Eighth Circuit on October 22, 2010, arguing that I erred by varying upward and by not reducing Rogers’s offense level based on acceptance of responsibility. See Crim. docket no. 359. On April 15, 2011, the Eighth Circuit Court of Appeals affirmed Rogers’s sentence. See Crim. docket no. 359.
B. The § 2255 Motion
On March 29, 2012, Rogers filed a Pro Se Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 2)(“Motion”). On October 5, 2012, Rogers filed a Pro Se Memorandum Of Law (Civ. docket no. 4), to support his Motion. Rogers then filed a letter (Civ. docket no. 5), in supplement to his Motion, on August 6, 2012. The Respondent filed an Answer (Civ. docket no. 7), on August 20, 2012. On December 28, 2012, Rogers, by counsel, filed a Petitioner’s Supplemental Brief (Civ. docket no. 15), in further support of his Motion. The Respondent filed its Response and Memorandum In Support Of Government’s Response To Defendant’s Motion (Civ. docket no. 18), on February 27, 2013. Rogers, by counsel, filed his Reply To Government’s Response (Civ. docket no. 21), on April 1, 2013.
II. LEGAL ANALYSIS
A. Standards For § 2255 Relief