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May 9, 2005.

WILLIAM L. CURTIS, Petitioner,

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.

  I. Background

  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 motion);

  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 constitutionally ineffective.

  II. § 2255 Standard

  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.

  III. Analysis

  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.

  A. Trial Counsel

  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 ...

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