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August 10, 2004.

U.S., Respondent.

The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge


Petitioner Tirenzy Wilson (hereinafter, "Wilson"), pro se, requests the Court to Vacate, Set Aside, or Correct his sentence, pursuant to 28 U.S.C. § 2255. For the following reasons, the Court declines to do so.


  In 1998, a jury sitting in the United States District Court for the Northern District of Illinois convicted Wilson, a "governor" in the Gangster Disciples street gang, of, inter alia, participation in a continuing criminal enterprise ("CCE") pursuant to 21 U.S.C. § 848. This enterprise included the distribution of large quantities of narcotics. After the court imposed a sentence of life in prison, Wilson and his co-defendants appealed the decision. However, a panel of the Seventh Circuit unanimously affirmed the District Court. See United States v. Hoover, 246 F.3d 1054 (7th Cir. 2001). Wilson filed his § 2255 petition on August 14, 2003. In it, Wilson advances seven arguments supporting his claim for relief: (1) the Circuit panel violated Wilson's right to due process under the Fifth and Fourteenth Amendments by affirming the admission of statutorily-inadmissible wiretap evidence on grounds not adversely tested during the initial trial; (2) appellate counsel was ineffective by failing to contest the Seventh Circuit panel's jurisdiction over new facts, as evidenced by the panel's use of a new theory to justify the admission of the wiretap evidence; (3) trial counsel was ineffective by not challenging the federal government's authority to intercept oral communications within a state correctional facility; (4) trial and appellate counsels were ineffective because they declined to call a witness who would have provided exculpatory testimony; (5) they failed to argue that the testimony of a rebuttal witness was improperly admitted; (6) Wilson's conviction is invalidated by changed circumstances, specifically the government's post-trial acknowledgment of the falsity of its witness' testimony; and (7) the government relied on a theory that it later acknowledged to be false.


  Petitioner Wilson, along with a number of co-defendants, was convicted in 1998 of numerous offenses arising from their involvement in the Gangster Disciples, a street gang that conducted extensive drug trafficking operations in Chicago. Wilson, a "governor" in the Gangster Disciples, was sentenced to life imprisonment as a result of his conviction on multiple charges. This conviction and sentence were affirmed on appeal. For a fuller recitation of the facts, see United States v. Jackson, 207 F.3d 910, 913-914 (7th Cir. 2000).


  A federal court may grant a writ of habeas corpus if a petitioner demonstrates "that the sentence 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 (2000). In filing a § 2255 motion, a defendant is barred from raising three classes of complaints. First, absent changed circumstances, issues already raised on direct appeal cannot support the motion. Second, any appealable nonconstitutional issues that were not raised on direct appeal are barred. Finally, constitutional issues not raised on direct appeal may only be raised in the § 2255 context if the petitioner shows both cause for this failure and prejudice resulting therefrom. See Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992). As noted above, Wilson here alleges seven grounds for reversal, none of which justifies the relief that he seeks. A. Admission of Evidence

  Wilson first argues that the admission into evidence of tapes the government made of conversations between several gang members violated his right to due process under the Fifth and Fourteenth Amendments. The tapes were initially admitted, over the defendant's objection, during an earlier trial of another member of the Gangster Disciples' "board," and their admission was subsequently upheld. See United States v. Jackson, 2004 WL 868263 (N.D. Ill. 2004). As Wilson observes, the Seventh Circuit panel that affirmed that defendant's conviction admitted the contested tapes on different grounds than those accepted by the trial court in that case. Moreover, although the panel claimed that the justification for the evidence derived from the government's brief, the argument was not briefed, but rather appeared in a government attorney's affidavit. See Hoover, 246 F.3d at 1063-1064 (Rovner, J., concurring). Wilson therefore argues that he should be granted a hearing to contest the admission of the tapes in his own case.

  Unfortunately for Wilson, though, the Seventh Circuit's decision upholding the admission of the tape evidence is binding on this Court. See Hoover, 246 F.3d at 1057. Indeed, even though one Circuit judge expressed concern regarding the admission of this evidence, she nevertheless was compelled to concur in her own panel's admission of the tapes on the grounds of stare decisis. See id. at 1063-1065 (Rovner, J., concurring). The only venue available to challenge that decision was the United States Supreme Court, which declined petitioner's invitation for review. This Court certainly cannot effectively overrule its own appellate court, the Seventh Circuit, which is what Wilson asks. Accordingly, Wilson is not entitled to a new evidentiary hearing on the admission of the tapes.

  B. Ineffective Assistance of Counsel

  Next, Wilson asserts that his conviction was constitutionally flawed because he was denied effective assistance of counsel, which is guaranteed by the Sixth Amendment. See McMann v. Richardson, 397 U.S. 759, 771 (1970). The Supreme Court promulgated the standard for determining whether an individual received ineffective assistance in Strickland v. Washington. 466 U.S. 668 (1984). There, the Court established a two-prong test for finding that "counsel's assistance was so defective as to require reversal of a conviction." Id. at 687. First, the petitioner must demonstrate "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. In addition, he must show "that counsel's errors were so serious as to deprive the defendant of a fair trial." Id. Thus, even if a counsel's performance was substantially deficient, it will constitute grounds for reversal if it resulted in a demonstrably unfair trial. As noted above, a petitioner may not use the § 2255 motion as a secondary appeal of issues decided earlier. See Belford, 975 F.2d at 313 ("a Section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal"). Petitioners are therefore barred from recasting previously argued issues as instances of ineffective assistance of counsel. See Daniels v. United States, 26 F.3d 706, 711-712 (7th Cir. 1994) (court rejected petitioner's § 2255 claim of ineffective assistance because it "simply recapitulat[ed]" an argument already raised at trial). Finally, because all § 2255 motions arise in the context of unsuccessful defenses and are viewed through the distorting lens of hindsight, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Put another way, a judge must recognize that an unsuccessful counsel may not have been objectively ineffective in the legal sense; otherwise, a valid habeas claim would always lie for the losing party in litigation.

  Wilson raises four claims of allegedly ...

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