The opinion of the court was delivered by: REINHARD
Petitioner, Donald Ray Box, filed a petition pursuant to 28 U.S.C. § 2255 seeking to set aside his sentence entered upon his guilty plea to one count of conspiracy to distribute cocaine and cocaine base and one count of use of firearms during drug trafficking offenses. The government filed a response, arguing in part that petitioner's claim of double jeopardy was procedurally defaulted because petitioner did not directly appeal his sentence. Petitioner was given leave to amend his section 2255 petition to address the procedural default issue. The government filed a supplemental response and petitioner filed a reply.
On July 27, 1993, a grand jury indicted petitioner with conspiracy to possess with intent to distribute cocaine and cocaine base and conspiracy to possess with the intent to distribute and to distribute and distribution of heroin. On November 23, 1993, the grand jury returned superseding indictments adding charges against petitioner of possession with intent to distribute cocaine, use of firearms during drug trafficking offenses, possession of firearms as a convicted felon and possession of heroin with intent to deliver. Petitioner pleaded guilty to conspiracy to distribute cocaine and cocaine base and use of firearms during drug trafficking offenses. Pursuant to a written plea agreement, petitioner agreed to cooperate with the government in the prosecution of his codefendants and the government moved, pursuant to U.S.S.G. § 5K.1 and Fed.R.Crim.P. 11(e)(1)(c), that petitioner receive a sixteen-year prison term. The government also agreed to dismiss the remaining charges against petitioner. This court, on October 12, 1994, sentenced petitioner to sixteen years in prison and dismissed the remaining counts. Petitioner did not file a direct appeal challenging his conviction or sentence.
On July 27, 1993, the government seized, pursuant to a warrant, approximately nineteen grams of cocaine, and twenty-nine grams of heroin, two nine millimeter handguns, $ 8,144 in United States currency and fourteen pieces of jewelry, all from petitioner's residence. Also seized that day were two vehicles which petitioner had driven during drug transactions.
Following the seizures, the FBI notified petitioner of the forfeiture action. The only property to which petitioners asserted an interest was three pieces of the jewelry. Petitioner filed a claim against the three pieces of jewelry, claiming they were not purchased with the proceeds of drug trafficking.
In early 1995, the government and petitioner attempted to settle the forfeiture action involving the jewelry. Pursuant to those negotiations, on February 3, 1995, the magistrate judge granted the joint motion of petitioner and the government for an order permitting the interlocutory sale of the jewelry. As a result, the jewelry, including the three pieces claimed by petitioner, were sold at auction on April 7, 1995.
A subsequent effort to settle on an amount to be paid petitioner failed. On July 26, 1995, the government received petitioner's section 2255 petition. On July 7, 1995, the government moved: (1) to reinstate the original forfeiture complaint that had been dismissed pursuant to settlement; (2) to dismiss the complaint as to the proceeds of the three pieces of jewelry; and (3) for entry of a decree of forfeiture as to the other eleven pieces of jewelry. This court granted all three motions over petitioner's objections.
In his original petition brought pursuant to section 2255, petitioner contends that his conviction and sentence violate the Double Jeopardy Clause because the forfeiture of the three pieces of jewelry constituted punishment and occurred prior to the conviction and sentence. Petitioner also argues that his conviction and sentence for use of firearms during a drug trafficking offense is a result of the government's misuse of the Commerce Clause to violate his Second Amendment Rights. The government responds to the original petition arguing that petitioner is procedurally defaulted from raising any double jeopardy, Second Amendment or Commerce Clause claims by failing to raise them on direct appeal, and that double jeopardy is not implicated by the civil forfeiture proceeding because: (1) there was no judgment of forfeiture entered as to the three pieces of jewelry; and (2) there was no punishment suffered by petitioners because the forfeiture of drug proceeds was remedial only and not deterrence or retribution. The government also responds that both the Second Amendment and Commerce Clause claims are without merit.
The failure to raise a constitutional challenge at trial or on direct appeal bars a petitioner from raising such issues in a federal habeas proceeding absent a showing of cause for the procedural default and actual prejudice. Salberg v. United States, 969 F.2d 379, 381 (7th Cir. 1992). The failure of a petitioner to establish either cause or prejudice requires dismissal of his section 2255 petition. Id. Moreover, where a petitioner claims ineffective assistance of counsel for failure to take a direct appeal, that claim is precluded in a § 2255 petition unless the ...