The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is petitioner's motion to vacate, set aside or correct sentence and amendment thereto, to which the government has filed a response. Also before the Court are petitioner's motions for discovery.
On November 9, 2000, a grand jury returned a superseding indictment against John A. Ellebracht, Joyce Kay Ogle, and petitioner Alonzo Suggs. The superseding indictment charged all defendants in Count 1 with conspiracy to possess with the intent to distribute, and to distribute, cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2. Alonzo Suggs was also charged in Count 2 of that superseding indictment for unlawful possession of a firearm by a convicted felon. Ellebracht pleaded guilty and testified at trial against Ogle and Suggs.
The jury returned verdicts of guilty as to each defendant (Ogle and Suggs) on Count 1 and against petitioner on Count 2, on March 22, 2001. Petitioner was sentenced to terms of 300 and 120 months' imprisonment to run concurrently, terms of supervised release of 10 years and 3 years to run concurrently, a $2000 fine and a $200 special assessment.
Petitioner's conviction and sentence were affirmed by the Seventh Circuit Court of Appeals in an unpublished order dated February 14, 2003. United States v. Suggs, 59 Fed. Appx. 818 (7th Cir. 2003). His request for a writ of certiorari was denied on October 6, 2003. Suggs v. United States, 540 U.S. 909 (2003).
In his motion to vacate, petitioner argues that: (1) he received ineffective assistance of counsel during his suppression hearing; (2) he received ineffective assistance of counsel in that his attorney failed to seek severance from his co-defendant and severance of the two counts; (3) he received ineffective assistance of counsel during plea negotiations; (4) he was denied his right to confrontation and received ineffective assistance of counsel in that his attorney failed to raise a Bruton issue; (5) he is innocent with respect to Count 1 and received ineffective assistance of counsel in that his attorney failed to make an argument on appeal as to the sufficiency of the evidence on Count 1; (6) he received ineffective assistance of counsel due to his attorney's failure to challenge the amount of drugs attributable to petitioner; (7) he received ineffective assistance of counsel when his attorney failed to challenge his sentence on appeal; (8) the Court lacks jurisdiction to impose the sentence it imposed; and (9) the actual sentence imposed violated petitioner's constitutional rights.
Grounds for relief pursuant to 28 U.S.C. §2255 are more limited than grounds for relief on direct appeal. A §2255 motion cannot raise issues that were raised on direct appeal absent a showing of changed circumstances. An issue not raised on direct appeal may not be raised in a § 2255 motion unless the defendant can demonstrate either: (1) both good cause for his failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or (2) that the district court's refusal to consider the claims would lead to a fundamental miscarriage of justice. See, McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996); Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995); Degaglia v. United States, 7 F.3d 609, 611 (7th Cir. 1993). However, an ineffective assistance of counsel claim may be made in a subsequent collateral attack pursuant to 28 U.S.C. § 2255, even if the petitioner could have made the claim on direct appeal. See, Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690 (2003).
Petitioner first claims that he received ineffective assistance of counsel with respect to Count 2 due to counsel's alleged failure to introduce evidence and testimony during a suppression hearing. The following factual description is excerpted from the Court's order denying petitioner's motion to suppress. (See, 00-CR-30176, Doc. 58).
Early on the morning of February 26, 1996, St. Clair County Sheriff's Deputy Kurt Eversman was dispatched to investigate a complaint of shots fired at Greystone Apartments, a public housing project in Alorton, Illinois. As he approached the entrance, Deputy Eversman was flagged by Terrance Miller, who stated that he had been shot while riding in a car with Carlos Dye. Miller and Dye identified the shots as coming from a gold Nissan Maxima. Miller stated that the Maxima had Illinois plates D58092, and was driven by Alonzo Suggs. He identified Suggs by his distinctive sunglasses, and also stated there was another male in the car. Miller said he heard four or five shots coming from the Maxima as they drove by, and some had gone through his vehicle resulting in his flesh wound. Eversman inspected the vehicle Miller had been riding in, and found it had two bullet holes, one in the windshield, and another in the interior part of the passenger's door. Eversman contacted his supervisor and a broadcast was placed for the arrest of Suggs for aggravated battery.
At approximately 2:00 A.M., Eversman stopped a gold Maxima which fit the description given by Miller, including the license plate. Eversman was joined at the stop scene by Sergeant Larry Phillips and Deputy Ralph Owens. The defendant got out of the car, leaving the door open, and walked toward the back of his car. Eversman told him to place his hands on the trunk, and he complied. Suggs was wearing black glasses that fit the description given by Miller. The defendant was asked for identification, and gave him his driver's license. He asked Eversman why he was being arrested and what was going on. Eversman replied that he was a suspect in an aggravated battery involving a shooting at the Greystone Projects. Suggs replied that he was "not that kind of guy," and that if he had wanted to shoot anyone he could have "smoked" Eversman. The defendant was secured and placed under arrest.
Meanwhile, Sergeant Phillips had walked up to the car and shone his flashlight into the interior of the car. He saw what he believed to be the butt of an assault-type pistol under the driver's seat. He notified Eversman of the presence of the gun, and Eversman placed it in an evidence bag.
When the defendant arrived at the St. Clair County Jail he was interviewed by Deputy Sheriff Steven Johnson at approximately 4:45 A.M. Johnson administered the defendant his Miranda warning, reading from a form used by the St. Clair County Sheriff's Department. The defendant acknowledged his rights, but refused to sign the form. Although he said he could read and write, Suggs refused to sign the form because he "was afraid to sign anything."
Johnson questioned Suggs about the shooting and the gun. When he was asked if the gun was that of someone else he said "No." He denied being at the Greystone Apartments, stating that he was in the Hawthorn public housing complex, which is a few blocks away. When asked who the gun belonged to he said "Who do you think it is? I was the only one in the car and I was the only one ...