Litaker v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TROY D. LITAKER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
RESPONDENT.
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Case No. 3:25-cv-00402-DWD
MEMORANDUM & ORDER
DUGAN, District Judge:
In this proceeding, Petitioner Troy D. Litaker, (“Petitioner”) requests that the
Court vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Doc. 1). The
Government 	opposes 	that 	request. 	(Doc. 	15). 	For 	the 	reasons 	explained 	below,
Petitioner’s request is DENIED.
I. 	Introduction
On December 6, 2023, Litaker pled guilty to a single count indictment charging
him with distribution of methamphetamine, in violation of 21 U.S.C. §841(a)(1) and
(b)(1)(C). He was sentenced to 132 months imprisonment (Crim. Doc. 34)1 . Following an
unsuccessful appeal of his plea and sentencing, he filed the present petition.
His Habeas Petition alleges that his attorney was ineffective in a number of ways:
1 “Crim. Doc” refers to the underlying criminal matter that resulted in Petitioner’s conviction and sentencing. 23-
CR-30084-DWD
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(1). That his attorney failed to “file certain pleadings, motion and objections which were
necessary to file to put on an adequate defense” (Doc. 1, P. 4); (2) that his attorney failed
to raise on appeal the issue of ineffective assistance of counsel. (Doc. 1, P. 5); (3) that his
attorney “failed to make any objections to the PSR which resulted in a miscalculation” of
his sentence. (Doc. 1, p. 5-6); (4) that his attorney failed to object to the relevant conduct
resulting in a higher offense level than was warranted. (Doc. 1, p. 6); (5) that his attorney
failed to object to a miscalculation of criminal history points in the PSR (Doc. 1, p. 6-7);
(6) that his attorney failed to secure and share and review with the Petitioner before
advising him to plead guilty. (Doc. 1, p.8); that his attorney advised him to reject a
“binding” plea offer of 120 months imprisonment and then he received a sentence of 132
months. (Doc. 1, p. 9) and (7) that his attorney failed to submit “multiple reference letters
from friends and loved ones” and to have testify the “multiple people [who] show[ed]
up in his support all wishing to testify.” Id. On these bases, Petitioner requests that the
court conduct an evidentiary hearing and a resentencing based on “refigured” offense
level and criminal history.
II. Background
FBI agents were investigating Petitioner in February 2022 based on information
from 	a 	confidential 	source 	that 	Petitioner 	was 	involved 	in 	the 	distribution 	of
methamphetamine in the Fayette County, Illinois area. (Crim. Doc. 21, p. 1). During the
investigation, 	agents 	used 	a 	confidential 	source 	to 	arrange 	for 	the 	purchase 	of
methamphetamine from Petitioner. Id. On February 9, 2022, Petitioner sold a plastic bag
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containing 12.0 grams of actual methamphetamine to a confidential source as this home.
Id. The transaction was audio and video recorded. Id. Petition was paid $320 of official
advanced funds in exchange. Id. The substance Petitioner sold the Confidential Source
was confirmed by the DEA laboratory chemical analysis to be methamphetamine. Id. On
these facts, Petitioner was indicted. (Crim. Doc. 1)
On December 6, 2023, Petitioner pled guilty to the sole count of the indictment
without a plea agreement, but pursuant to a written stipulation of facts. (Crim. Doc. 21).
A PSR was prepared and filed with the Court. It found the Sentencing Guidelines
range to be 151 to 188 months based upon on an offense level of 32 and a criminal history
of 13 points, resulting in a criminal history category of VI. (Crim. Doc. 47) After adopting
the PSR, the Court on April 2, 2024, sentenced Petitioner to 132 months of imprisonment.
Litaker timely filed a direct appeal. (Crim. Doc. 39). His appeal was dismissed by the
Seventh Circuit Court of Appeals. (Crim. Doc. 52).
III. Conclusions of Law
Under § 2255(a), the Court will grant the “extraordinary remedy” of vacating,
setting aside, or correcting Petitioner’s sentence only if he shows it “was imposed in
violation of the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a);
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Notably, a hearing on such
matters is not necessary when “the files and records of the case conclusively show that
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the prisoner is entitled to no relief.” United States v. Taylor, 605 F.Supp.3d 1079, 1081 (N.D.
Ill. Jun. 1, 2022). The undersigned, as the District Judge who presided over Petitioner’s
underlying criminal case, “is uniquely suited to determine if a hearing is necessary.” See
Taylor, 605 F. Supp. 3d at 1081 (quoting Rodriguez v. United States, 286 F.3d 972, 987 (7th
Cir. 2002)), as amended on denial of reh’g and reh’g en banc (7th Cir. 2002) (cleaned up).
As a substantive matter, the Sixth Amendment to the United States Constitution
grants criminal defendants the right to the effective assistance of counsel. Wyatt v. United
States, 574 F.3d 455, 457 (7th Cir. 2009) (citing Watson v. Anglin, 560 F.3d 687, 690 (7th Cir.
2009)). Under Strickland, the petitioner seeking habeas relief must prove: (1) that his
attorney’s performance fell below an objective standard of reasonableness; and (2) that
the attorney’s deficient performance prejudiced the defendant such that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir.
2007); See Strickland v Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). “Both components
of the test must be satisfied; ‘the lack of either is fatal.’” Clay v. United States, 311 F.Supp.3d
911, 918 (N.D. Ill. Apr. 19, 2018) (quoting Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir.
1996)).
During this inquiry, it is presumed that a petitioner’s counsel was “reasonably
proficient.” Galbraith v. United States, 313 F.3d 1001, 1008 (7th Cir. 2002); see also Wyatt v
United States, 574 F.3d 455, 458 (7th Cir. 2009) (“[A] movant must overcome the ‘strong
presumption 	that 	counsel’s 	conduct 	falls 	within 	the 	wide 	range 	of 	reasonable
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professional assistance.’”); Clay, 311 F.Supp.3d at 919 (“The central question in this
analysis is not whether counsel’s conduct deviated from best practices or most common
custom, but instead, whether an attorney’s representation amounted to incompetence
under prevailing professional norms.”) (cleaned up). “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland v. Washington, 446 U.S. 668, 686 (1984). Put another way,
in order to establish counsel’s performance was deficient, the defendant must show errors
so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth
Amendment. 	Hartjes 	v. 	Endicott, 	456 	F.3d 	786, 	790 	(7th 	Cir. 	2006). 	“Counsel’s
representation need not be perfect, indeed not even good, to be constitutionally
adequate.” Anderson v. United States, 94 F.4th 564, 581 (7th Cir. 2024). Petitioners should
keep in mind that “[t]o reflect the wide range of competent legal strategies and to avoid
the pitfalls of review in hindsight,” there is a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Yu Tian Li v. United
States, 648 F 3d 524, 527-28 (7 th Cir. 2011). The strength of this presumption is a recognition
that defense counsel’s practice, strategy and judgment should not be constrained by
worry that a court of review will disagree with the efficacy of the defense he mounts on
behalf of his client. Rather, “[t]he reasonableness of counsel's performance is to be
evaluated from counsel's perspective at the time of the alleged error and in light of all the
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circumstances, and the standard of review is highly deferential.” Hartjes v. Endicott, 456
F.3d 786, 790 (C.A.7 (Wis.),2006)
“To establish prejudice, the petitioner must show that “there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Benefiel v. Davis, 357 F.3d 655, 661 (7 th Cir. 2004)
citing Strickland, 466 U.S. at 694.
Finally, those seeking Habeas relief must provide a factual basis for each claim of
ineffectiveness of counsel. In fact, “[h]abeas corpus petitions must meet heightened
pleading requirements.” McFarland v. Scott, 114 S.Ct. 2568, 2572, 512 U.S. 849, 856
(U.S.,1994) The 11th Circuit has determined that “[t] he § 2254 Rules and the § 2255 Rules
mandate “fact pleading” as opposed to “notice pleading,” as authorized under Federal
Rule of Civil Procedure 8(a).”Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011). There, the
Court reasoned:
Unlike a plaintiff pleading a case under Rule 8(a), the habeas
petitioner ordinarily possesses, or has access to, the evidence necessary to
establish the facts supporting his collateral claim; he necessarily became
aware of them during the course of the criminal prosecution or sometime
afterwards. The evidence supporting a claim brought under the doctrine set
forth in Brady v. Maryland, 373 U.S. 83 (1963), for example, may not be
available until the prosecution has run its course. The evidence supporting
an 	ineffective 	assistance 	of 	counsel 	claim 	is 	available 	following 	the
conviction, if not before. Whatever the claim, though, the petitioner is, or
should be, aware of the evidence to support the claim before bringing his
petition.
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Id at 810.
While there is no requirement of precise or elaborate pleading, mere conclusory
allegations of ineffective assistance of counsel without specifying the facts that support
such allegations is not sufficient under §2255 or Rule 8(a).
With these legal principles in mind, the Court will address Litaker’s Petition.
IV. 	Discussion
1. Petitioner’s Claim That His Attorney Failed to File Certain Pleadings, Motions
and Objections
Petitioner makes the claim that his attorney was ineffective because he “failed to
file certain pleadings, motions and objections which were necessary to put on a defense”.
(Doc. 1, p. 4) His pleadings are deficient. He does not describe the nature or purpose of
the pleadings, motions or objections he asked his attorney to file, nor does he provide the
facts that would underly such pleadings. In short, he does not describe any facts
necessary to make a claim for ineffective assistance of counsel for the failure to file such
things. In contrast, Mr. Cronin’s affidavit reveals that he specifically advised Litaker of
the right and his willingness to file on Litaker’s behalf Motions in Limine and, if facts
would support it, a motion to suppress. (Doc. 15-2) And, significantly, Mr. Cronin’s
affidavit provides: “But there are no documents which I refused to file on his behalf.” Id.
at 1. But apart from Litaker’s lack of factual support for ineffective assistance, he does not
allege how the failure to file “pleadings, motions and objections” prejudiced him such
that the outcome would have been different.
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Strickland is clear it its mandate that both prongs must be satisfied before a
§2255 petition can succeed. The second prong, prejudice resulting from the alleged
ineffectiveness of counsel, has not been met. He has not alleged or demonstrated how the
filing of these nondescript “pleadings’ motions and objections” would have proved to be
legitimate or successful such that the course of the litigation would have been altered in
his favor. Absent the allegation and showing of prejudice, the claim for ineffective
assistance of counsel fails.
2. Petitioner Claims His Attorney Was Ineffective for Failing to Raise on Direct
Appeal the Question of Ineffective Assistance of Counsel.
Here, Litaker claims that he “instructed his attorney to file a notice with the court
of his intentions to file an Appeal” on the basis of ineffective assistance of counsel. This
contention fails to satisfy the requirement of either prong under Strickland.
As the Government points out, ineffective assistance claims are “not suited for
direct appeal.” United States v. Fuller, 312 F. 3d 287, 291 (7 th Cir. 2002). On Litaker’s direct
appeal, both Mr. Cronin and the 7 th Circuit noted that “[a]s is usually the case, Litaker’s
argument [of ineffective assistance of counsel] must be reserved for collateral review,
when an evidentiary foundation can be developed.” (Doc. 15-2, p. 1-2 and Doc. 15-1, pg.
4). So, it was quite proper for Mr. Cronin to forgo seeking review of the question of
ineffective counsel on direct appeal.
As to the question of the second prong of the Strickland test, that of prejudice,
Litaker’s claim fails. Mr. Cronin’s decision not to pursue the ineffective assistance of
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counsel issue on direct appeal preserved for Litaker the opportunity to have it addressed
in a Habeas Corpus petition. Clearly, Mr. Cronin’s conduct in this regard caused Litaker
no prejudice.
3. Litake’s Claims that His Attorney Failed to Make Any Objections to the PSR
Which Resulted in a Miscalculation of His Sentence.
Litaker claims that his offense level would have been lower because his “Pre-
Sentence Report contained inaccurate Reletive (sic) Conduct”. (Doc. 1, p. 6) He adds that
he informed his attorney of the inaccuracies and asked that he object. However, he further
alleges that his attorney “threatened” him by advising him that the “PSR writer may
retaliate by finding a reason for an Upward Departure or Upward Variance or by finding
additional Reletive (sic) conduct to increase his offense level.” Id. In additional support
of his claim he alleges that his PSR’s report of his criminal history was also inaccurate. Id
at 7. Litaker does not, however, identify the alleged misinformation that led to the
“miscalculation”. 2 Nor does he attempt in any way to illustrate the misinformation by
pointing to proper calculations of relevant conduct or which prior convictions he believes
should not have been counted in his criminal history. Rather, Litaker offers only vague
and conclusory allegations of ineffective assistance, without any hint of factual support
that, if proved, would warrant an evidentiary hearing or the relief he requests. This lack
2 In his “Objections to Governments Response” (Doc. 19, p. 2) Litaker states: “Petitioner objects to his calculated
guidelines and his criminal history points in which his convictions from 2001-2004 of manufacturing controlled
substance was incorrectly used”. Again, Litaker does not provide a factual basis for his “objection”.
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of factual support is not just a problem for Litaker’s Petition here, it also created a problem
for Mr. Cronin to argue miscalculation at sentencing.
Mr. Cronin states in his affidavit that he was aware of Litaker’s disagreement with
the government’s view of his relevant conduct. He also relates that he was willing to
object to the PSR but warned Litaker that objecting may come at a cost, particularly if the
true relevant conduct was discovered to be more than provided for in the PSR. These
considerations are borne out by the correspondence Mr. Cronin sent to Litaker. (Doc. 15-
2 p. 2). In any event, Litaker was informed, and in the end, he decided to forego the
objections. At the same time, Mr. Cronin relates that he was concerned that Litaker did
not have a good explanation for why he believes the relevant conduct calculation was
incorrect. Id at 13. He further expressed concern to Litaker that the Court may view with
skepticism the claim of a lower relevant conduct when he cannot point to the reason for
a lesser amount. Finally, Mr. Cronin expressed apprehension that such an objection
would have the effect of “overshadowing” what he felt was the better strategy of
highlighting accomplishments and a lesser role in the enterprise. Id. Each of these
concerns were worthwhile and Litaker makes no effort to suggest that Mr. Cronin’s views
on 	these 	subjects 	are 	so 	far 	afield 	as 	to 	render 	the 	representation 	he 	received
constitutionally ineffective.
Moreover, Litaker’s contention that his “Pre Sentence Report contained inaccurate
Reletive [sic] Conduct “(Doc. 1, p. 6), conflicts with the representations Litaker made to
the Court during the sentencing. After Litaker was placed under oath, the Court inquired
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of him whether he had read the PSR from the beginning to the end and whether he had
ample opportunity to review it with Mr. Cronin to ask any questions he may have had.
He responded in the affirmative to each inquiry. The Court then asked him whether
“everything contained in the that presentence investigation report [is] truthful and
accurate” and Litaker responded “Yes, your honor”. (Crim Doc. 47 pgs. 5-6)
“[T]he representations of the defendant [at a plea hearing] as well as any findings
made by the judge accepting the plea, constitute a formidable barrier in any subsequent
collateral proceeding.” Key v. U.S., 806 F.2d 133, 136 (7th Cir. 1986) citing Thompson v
Wainwright, 787 F.2d 1447, 1460 (11th. Cir.). A petitioner's “declarations in open court
carry a strong presumption of verity.” Id. The same standard applies to representations
made while under oath by a defendant at a sentencing hearing. Here, that formidable
barrier cannot be scaled without finding that Litaker lied under oath about the contents
of the PSR being accurate but is now telling the truth. But “[j]udges need not let litigants
contradict themselves so readily; a motion that can succeed only if the defendant
committed perjury at the plea proceedings may be rejected out of hand unless the
defendant has a compelling explanation for the contradiction.” U.S. v Peterson, 414 F.3d
825, 827; See also Bethel v. U.S., 458 F.3d 711, 719 (7th Cir. 2006). Litaker offers no
compelling explanation for his contradictions.
As noted, Litaker also argues that PSR miscalculates his criminal history and that
this resulted in a higher guideline sentence. (Doc. 1, p. 6-7) He complains that Mr. Cronin
should have objected to the PSR on that basis. But Litaker does not identify in his Petition
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the alleged miscalculation or why he believes the PSR miscalculates his criminal history.
At the same time, Mr. Cronin indicates that he is “not aware of any miscalculated criminal
history points or an erroneous Criminal History Category being applied to Mr. Litaker”.
(15-2, p. 2). Because the record is devoid of any indication that Mr. Cronin was ineffective
for failing to object to a miscalculation, Litaker’s claim for ineffective assistance
necessarily fails.
As to the issue of threats of retaliation by Probation if the miscalculations were
objected to is without any factual basis. Mr. Cronin confirms that he never communicated
to Litaker that he feared “that objections to relevant conduct or to his criminal history
could result in the United States Probation Office retaliating by finding a basis for an
upward departure, upward variance or additional relevant conduct.” (Doc. 15-2, p. 3).
Mr. Cronin adds that he had concerns of retaliation given that he had never experienced
retaliation despite the many objections he has filed on relevant conduct and criminal
history calculation. Id.
Litaker’s suggestion that he was manipulated into foregoing objecting to the PSR
is simply without basis in the record. Litaker provides no plausible allegation for this
contention or that, even if true, it would have possibly altered the outcome. Moreover, it
is the sentencing judge that makes the final decision whether a variance or departure
should be employed, not Probation.
A detour here is worthwhile. The Court wishes to note that it has the impression
from the nature of Litaker’s argument that he possibly believes that Mr. Cronin was
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ineffective because he didn’t win his case or that he failed to ensure that Litaker would be
ordered to serve a lesser sentence. But the 6 th Amendment does not guarantee victory. In
fact, litigation is fraught with uncertainty and risk. The lawyer’s job is to identify, assess
and communicate those risks. The decision whether to assume the risk in hopes of a
different result rests solely with the defendant in a criminal matter. 	So long as the
defendant is well-informed about those risks, he carries a heavy burden of showing that
his decision was based on his attorney’s conduct that was not “within the wide range of
reasonable professional assistance.” See Yu Tian Li v. United States, 648 F 3d 524, 527-28
(7th Cir. 2011). Here, there is nothing in the record to suggest that Mr. Cronin’s advice
and counsel was not within the wide range of reasonable professional assistance or that
“conduct so undermined the proper functioning of the adversarial process that the
[hearing] cannot be relied on as having produced a just result.” Strickland v. Washington,
446 U.S. 668, 686 (1984).
As to the issue of prejudice, Litaker offers nothing to support the notion that he
was prejudiced by his attorney’s conduct. He points to no facts in support that any
miscalculation, even if objected to, would have resulted in a reduced sentence or a
favorable result. Strickland requires as its second prong a showing of prejudice. Absent
such prejudice, Litaker cannot sustain a claim that his attorney was constitutionally
ineffective as counsel.
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4. Litaker Claims of Deficiencies in Discovery.
Litaker claims that he failed “to obtain all of the discovery from the government
in this case nor did [Mr. Cronin] ever go over any discovery with his client”. (Doc. 1 p.
8). Litaker does not allege what items in discovery were not produced or that he did not
have the opportunity to review. He makes a bare allegation of the existence of discovery
materials that were not produced but fails to support that allegation with any fact or
description. Much to the contrary, Mr. Cronin relates that he has no reason to believe
discovery was incomplete. (Doc. 15-2, p. 3) Furthermore, he attaches an emailed letter
“which memorializes my conversations with him” and the “importance of receiving and
reviewing together the evidence the prosecutor claims to have against you-called the
“Discovery”.” Id at 3-4. Mr. Cronin confirms as well that he reviewed the discovery
materials with him “many times.” Id. Litaker does not refute Mr. Cronin’s statement nor
does he suggest how he was prejudiced by this absent discovery. Accordingly, Litaker’s
claim of ineffective assistance regarding deficiencies in discovery fails.
5. Litaker Claims of a Rejected Plea Agreement and Promise of Acquittal.
Litaker claims that he rejected a “binding” plea agreement plea agreement with a
sentence cap of 120 months” on the advice of his counsel. (Doc. 1, p. 9) Litaker also claims
that his attorney “informed him that he could get the Defendant acquitted at trial.” Id. In
contrast, Mr. Cronin in his affidavit indicates that “[t]he only plea offer I received from
the government was neither for a binding plea agreement, nor did it have a sentence cap
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of 120 months.” Id. He adds that he did not promise Litaker an acquittal. To illustrate,
Mr. Cronin also attaches correspondence of November 8, 2023, where he wrote, contrary
to Litaker’s allegation, that while “[i]t is not to late to decide to fight your case. . . I am
concerned about whether we would win at trial, but you have every right to go to trial.”
Id. As the government points out, this letter was dated approximately 5 weeks before the
scheduled trial date, not 3 days as Litaker alleges. Litaker does not refute Mr. Cronin’s
affidavit or his correspondence. But even taking Litaker’s Petition in the light most
favorable to him, he does not provide a factual basis from which a conclusion can be
reasonably made that Mr. Cronin promised an acquittal or that his conduct was
objectively and constitutionally deficient.
Litaker’s Petition also lacks a showing of prejudice. As the government points out,
there was a pre-PSR assessment that Litaker’s guideline sentence would be in the range
121-151 months. However, the PSR determined that guideline range was higher – 151-
188 months. The Court had warned Litaker before he entered his guilty plea that there
are occasions where the anticipated guideline sentence is less than what probation may
find it to be, resulting in a possible longer sentence. (Crim Doc. 46, p. 15) He nevertheless
decided to proceed with entering his plea of guilty. Though Probation found a higher
guideline than was anticipated, Litaker received a downward variance of 19 months from
the lower end of the guideline range. Thus, Litaker cannot demonstrate prejudice.
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6. Litaker’s Claim That His Attorney Was Ineffective at Sentencing
Litaker next argues that his attorney failed to submit “multiple reference letters
from friends and loved ones in regards to the Defendant’s character.” (Doc. 1, p. 9). This
simply is untrue and demonstrably so from the record. Mr. Cronin attached and
integrated into his sentencing memoranda over a dozen letters in support of Litaker.
They consisted of letters and notes from acquaintances, friends, family members and
work supervisors of Litaker. (Doc. 26,1-14) Two additional letters were provided to the
Court just prior to sentencing. (Doc. 33) The Court confirmed during the sentencing
hearing that it did read and considered the Sentencing Memoranda and letters. (Doc. 47,
p. 3-4, 48, 53) So it is quite unclear on what basis Litaker now claims that Mr. Cronin did
not bring letters in support to the attention of the Court. Whatever can be said, the record
reflects that Mr. Cronin did, in fact, provide to the Court the letters in support and there
is nothing Litaker has presented or that is of record that suggests Mr. Cronin’s
representation was constitutionally inadequate. 3
Litaker next argues that he was the victim of ineffective assistance of counsel when
he “had multiple people show up in his support all wishing to testify on behalf of the
Defendant” but Mr. Cronin did not call them as witnesses. Mr. Litaker does not name the
3 The Court addressed Mr. Litaker at sentencing: “I think it would be worth mentioning that we’re an hour and 35
minutes into this sentencing. Most are 45 minutes long, and I think the length isn’t what is important. What is
important is just the depth and breadth of the information that Mr. Cronin has presented on your behalf. I hope
you recognize that level of advocacy is not universal.” Doc 47, p 55.
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witnesses, their relationship to him or what testimony they may have offered if called.
Again, Litaker offers nothing factually substantive to support his claim.
Nevertheless, Mr. Cronin offers his affidavit to refute Litaker’s allegations and to
point out that he did not think any witnesses were necessary. But Mr. Cronin also
indicates in his affidavit that Litaker did not want to have anyone in attendance at his
sentencing hearing. See (Doc. 15-2, p. 6) (“[a]s late as March 25, 2024, Mr. Litaker did not
want anyone to even attend the sentencing hearing on his behalf.”) Because Mr. Cronin
thought attendance by supporters to be important, he invited by email nine individuals
to attend sentencing. Id. Litaker does not refute these things. Litaker does not suggest in
any way that Mr. Cronin’s strategy against inviting supporters who he has not
interviewed to testify falls below the objective standard of reasonableness. Nor does he
suggest that calling these supporters as witnesses would have produced a better result
for him. So, he points to no prejudice as a result of Mr. Cronin’s decision not to call
supporters as witnesses. Accordingly, Litaker’s claim that he received ineffective
assistance by his counselor for failing to call witnesses at sentencing fails, too.
7. Litaker’s Request for Evidentiary Hearing
Litaker requests an evidentiary hearing but does not suggest what evidence he
would need to support any of his claims. But “[n]ot every petitioner who seeks relief
pursuant to § 2255 is entitled to an evidentiary hearing.” Cooper v. United States, 378 F.3d
638, 641–42 (7th Cir.2004). A district court need not hold an evidentiary hearing “if the
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petitioner makes allegations that are vague, conclusory, or palpably incredible, rather
than detailed and specific.” Bruce v. United States, 256 F.3d 592, 597 (7th Cir.2001)
(quotation marks omitted); Boulb v. U.S., 818 F.3d 334, 339 (7th Cir. 2016). Nor is a hearing
necessary when “the files and records of the case conclusively show that the prisoner is
entitled to no relief.” United States v. Taylor, 605 F.Supp.3d 1079, 1081 (N.D. Ill. Jun. 1,
2022)
As noted above, Litaker has wholly failed to make any specific or detailed factual
allegations to support any of his myriad claims. His allegations of ineffective assistance
are not only vague and conclusory, but many are also in direct contravention to the
record. Likewise, he fails to show prejudice in that the outcome would likely have been
different had his attorney performed differently. His failure to make the required
showing of sufficient prejudice defeats his ineffectiveness claim. See Strickland, 466 U.S.
at 700. And though given the opportunity to reply, he does not provide expansion or
enhancement of the bare allegations contained in his Petition. At each turn, Litaker has
failed to allege a plausible factual basis for the relief he seeks in his Petition. But, in any
event, the record clearly shows he is entitled no relief. Accordingly, the Court will decline
to hold an evidentiary hearing on Litaker’s Petition.
V. CONCLUSION
For the reasons explained above, the Court finds that Litaker is entitled to no relief
on his Petition. (Doc. 1). Accordingly, Litaker’s request to vacate, set aside, or correct his
sentence under § 2255 is DENIED without a hearing. See United States v. Taylor, 605
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F.Supp.3d at 1081. The case is DISMISSED with prejudice. The Clerk of the Court is
DIRECTED to enter judgment accordingly.
Rule 11(a) of the Rules Governing § 2255 Cases in the U.S. District Courts requires
the issuance or denial of a certificate of appealability when a final order is entered against
an applicant. Such a certificate of appealability may be issued “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Petitioner “must have a constitutional claim (or an underlying procedural argument on
which a constitutional claim depends), and he must ‘demonstrate that reasonable jurists
would find the district court’s assessment of his constitutional claims debatable or
wrong.’” United States v. Fleming, 676 F.3d 621, 625 (7th Cir. 2012) (quoting Tennard v.
Dretke, 542 U.S. 274, 281 (2004); citing Arredondo v. Huibregtse, 542 F.3d 1155, 1165 (7th Cir.
2008)); accord Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the Court FINDS the
alleged grounds for relief lack merit, and reasonable jurists would not find that
conclusion debatable or wrong. Since Petitioner has not made a “substantial showing of
the denial of a constitutional right,” the Court DECLINES to issue a certificate of
appealability.
SO ORDERED.
Dated: February 14, 2026 	/s/ David W. Dugan
______________________________
DAVID W. DUGAN
United States District Judge
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