The opinion of the court was delivered by: J. PHIL GILBERT, District Judge
This matter comes before the Court on petitioner William L.
Curtis's ("Curtis") motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The government
has responded to the motion (Doc. 16), and Curtis replied to that
response (Doc. 17). In the wake of Blakely v. Washington,
124 S. Ct. 2531 (2004), the Court allowed Curtis to amend his
petition (Doc. 18). The government responded to the amendment
(Doc. 20), and Curtis replied to that response (Doc. 21). The
Court also considers Curtis's motions to expand the record (Doc.
4) and for a hearing (Docs. 5 & 22).
Curtis's motion to expand the record seeks to add an exhibit to
his § 2255 motion that he inadvertently forgot to attach to the
motion. The Court will grant the motion (Doc. 4) and will
consider the exhibit in its review of the pending § 2255 motion.
In June 1999, Curtis was indicted on one count of conspiring to
distribute crack cocaine in violation of 21 U.S.C. §§ 846 and
841(a)(1) (count 1) and one count of distributing crack cocaine
in violation of 21 U.S.C. § 841(a)(1) (count 3). A superseding
indictment added another count of distributing crack, but that
count was dismissed before trial. In addition, the government
filed an information pursuant to 21 U.S.C. § 851 based on
Curtis's two prior felony drug convictions. Curtis's case was
tried to a jury in April 2000. At trial, Curtis was represented
by attorney John Abell ("Abell"). On April 5, 2000, the jury
found Curtis guilty on both counts. The indictment and verdict
forms contained no specific drug amounts. On February 9, 2001, the Court held a sentencing hearing at
which Curtis was represented by Christian J. Baril
("Baril").*fn1 At sentencing, the Court found by a
preponderance of the evidence that Curtis's relevant conduct was
500 grams to 1.5 kilograms of crack cocaine, which under United
States Sentencing Guideline*fn2 ("U.S.S.G.") § 2D1.1 yielded
a base offense level of 36. The Court also found by a
preponderance of the evidence that Curtis obstructed justice by
exhibiting reckless conduct during flight that created a
substantial risk of serious bodily injury to others and that his
offense level should therefore be increased by two points under
U.S.S.G. § 3C1.2, yielding a total offense level of 38. The Court
further found that Curtis's criminal history category was II. The
sentencing range for an offense level of 38 and a criminal
history category of II is 262 to 327 months in prison. The Court
sentenced Curtis to serve 327 months in prison on each count to
be served concurrently.
Curtis appealed to the Seventh Circuit Court of Appeals, where
he was represented by new counsel, Angela R. Hardy ("Hardy"). On
appeal, Hardy argued that the Court erroneously admitted evidence
of Curtis's prior bad acts and erroneously denied Curtis's motion
for a new trial in light of alleged newly discovered evidence, a
blank tape on which the government had attempted to record a drug
transaction allegedly involving Curtis. Curtis also advanced
other arguments in a pro se brief. The Court of Appeals
affirmed Curtis's conviction and sentence on February 11, 2002,
and issued its mandate on April 15, 2002. United States v.
Curtis, 280 F.3d 798 (7th Cir. 2002). Specifically, the Court of
Appeals found that the Court did not err in admitting evidence of
Curtis's prior bad acts or in finding that the alleged newly
discovered evidence Curtis relied on in his motion for a new
trial was neither newly discovered nor material to Curtis's defense. Id. at 802-03.
Curtis did not petition the United States Supreme Court for a
writ of certiorari.
Curtis filed this timely § 2255 motion on April 14, 2003. In
it, Curtis asks the Court to vacate his conviction and sentence
because his counsel at trial, at sentencing and on appeal were
constitutionally ineffective. Specifically, he alleges that his
trial counsel, Abell, was deficient because he:
1. failed to object to the government's evidence of Curtis's
prior bad acts on the grounds that it was inadmissible under
Federal Rule of Evidence 404(b) (ground 2 in Curtis's motion) and
that it improperly amended the indictment (ground 3 in Curtis's
2. failed to request a limiting instruction on the jury's use
of Rule 404(b) evidence (ground 4 in Curtis's motion);
3. failed to request a jury instruction on a mere buyer/seller
instruction relationship (ground 5 in Curtis's motion); and
4. failed to obtain from the government a statement given by
Lester Barr prior to the trial (ground 7 in Curtis's motion).
He further alleges that, even if no single counsel error
amounted to ineffective assistance, the cumulative effects of all
trial counsel's errors established this constitutional deficiency
(ground 8 in Curtis's motion). Curtis alleges that his sentencing
counsel, Baril, was ineffective for failing to object to the
manner in which the Court determined Curtis's relevant conduct
(ground 6 in Curtis's motion) and in failing to argue that the
disparity between the crime charged and the sentence given
violated his due process rights (ground 9 in Curtis's motion).
Finally, he alleges that his appellate counsel, Hardy, was
ineffective because she:
1. failed to argue that the evidence was insufficient to
convict Curtis of conspiracy (ground 1 in Curtis's motion);
2. included certain erroneous facts in her brief to the Court
of Appeals on the issue of the propriety of admitting evidence
under Rule 404(b) (ground 2 in Curtis's motion); and
3. failed to make a Brady argument based on the failure of
the government to disclose Lester Barr's statement prior to trial
(ground 7 in Curtis's motion). Curtis's amendment advances an additional argument based on
Blakely v. Washington, 124 S. Ct. 2531 (2004).
In response to Curtis's § 2255 motion, the government argues
that the Court should not consider some of Curtis's arguments
because they were already raised on direct appeal and there has
been no changed circumstances of law or fact since then. It also
argues on the merits that none of Curtis's three counsel were
The Court must grant a § 2255 motion when a defendant's
"sentence was imposed in violation of the Constitution or laws of
the United States." 28 U.S.C. § 2255. However, "[h]abeas corpus
relief under 28 U.S.C. § 2255 is reserved for extraordinary
situations." Prewitt v. United States, 83 F.3d 812, 816 (7th
Cir. 1996). Relief under § 2255 is available only if an error is
"constitutional, jurisdictional, or is a fundamental defect which
inherently results in a complete miscarriage of justice."
Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997)
(quotations omitted). It is proper to deny a § 2255 motion
without an evidentiary hearing if "the motion and the files and
records of the case conclusively demonstrate that the prisoner is
entitled to no relief." 28 U.S.C. § 2255.
A § 2255 motion does not substitute for a direct appeal. A
defendant cannot raise in a § 2255 motion constitutional issues
that he could have but did not raise in a direct appeal unless he
shows good cause for and actual prejudice from his failure to
raise them on appeal or unless failure to consider the claim
would result in a fundamental miscarriage of justice. Massaro v.
United States, 538 U.S. 500, 504 (2003); Wainwright v. Sykes,
433 U.S. 72, 87 (1977); Fountain v. United States,
211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. A defendant
cannot raise in a § 2255 motion nonconstitutional issues that he
failed to raise on direct appeal regardless of cause and
prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir.
2000). Neither is a § 2255 motion necessarily a second chance at a
successful appeal. The Court may refuse to consider issues in a §
2255 motion that a defendant raised on direct appeal where there
are no changed circumstances of fact or law. Olmstead v. United
States, 55 F.3d 316, 319 (7th Cir. 1995); Belford v. United
States, 975 F.2d 310, 313 (7th Cir. 1992).
The failure to hear a claim for ineffective assistance of
counsel in a § 2255 motion is generally considered to work a
fundamental miscarriage of justice because often such claims can
be heard in no other forum. They are rarely appropriate for
direct review since they often turn on events not contained in
the record of a criminal proceeding. Massaro,
538 U.S. at 504-05; Fountain, 211 F.3d 433-34. In addition, the district
court before which the original criminal trial occurred is in the
best position to initially make the determination about the
effectiveness of counsel in a particular trial and the potential
prejudice that stemmed from that performance. Massaro,
538 U.S. at 504-05.*fn3 For these reasons, the Court finds that
Curtis has not procedurally defaulted his ineffective assistance
of counsel claims.
The Court finds that Curtis has not presented any evidence or
argument meriting either a hearing or relief under § 2255. As
noted earlier in this order, Curtis asks the Court to vacate his
conviction on the basis of several alleged instances of
ineffective assistance of counsel. A party claiming ineffective
assistance of counsel bears the burden of showing (1) that his
counsel's performance fell below objective standards for
reasonably effective representation and (2) that this deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984);
Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000).
The plaintiff's burden is heavy because the Strickland test is
"highly deferential to counsel, presuming reasonable judgment and
declining to second guess strategic choices." United States v.
Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (quotations omitted).
To satisfy the first prong of the Strickland test, the
plaintiff must direct the Court to specific acts or omissions of
his counsel. Fountain, 211 F.3d at 434 (citing United States
v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995)). The Court must
then consider whether in light of all of the circumstances
counsel's performance was outside the range of professionally
competent assistance. Id. Counsel's performance must be
evaluated keeping in mind that an attorney's trial strategies are
a matter of professional judgment and often turn on facts not
contained in the trial record. Id. The Court cannot become a
"Monday morning quarterback." Harris v. Reed, 894 F.2d 871, 877
(7th Cir. 1990). To satisfy the second prong of the Strickland
test, the plaintiff must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceedings would have been different. Fountain,
211 F.3d at 434.
The Court will address the performance of each of Curtis's
three counsel separately.
For the following reasons, the Court finds that Abell was not
constitutionally ineffective in relation to Curtis's trial.
1. Evidence of Prior Bad Acts
a. Admissibility (Ground 2)
Curtis argues that Abell was ineffective for failing to object
to witnesses who testified about Curtis's activities prior to the
dates of the alleged conspiracy in this case, August 1998 to May
5, 1999. Specifically, he points to eleven witnesses who
testified about his prior bad acts from 1997 and early 1998. He
admits that the Court of Appeals reviewed the testimony of four
of those witnesses, and three tapes admitted in conjunction with
their testimony, under the plain error standard and found no
plain error. Curtis believes, however, that had counsel objected at
trial and had the Court of Appeals then been required to review
the evidence's admission for an abuse of discretion, the evidence
would not have been ...