The opinion of the court was delivered by: Judge George W. Lindberg
Curtis Smith ("petitioner"), currently a prisoner incarcerated at Fort Dix, New Jersey, moves this court pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States. The motion is denied for the reasons discussed below.
This court generally adopts the statement of facts laid out by the Seventh Circuit in United States v. Smith, 332 F.3d 455 (7th Cir. 2003), supplementing it where necessary with facts from the briefs of petitioner and the United States of America (the "government"). In November 2001, Hirschbach Motor Lines ("Hirschbach") hired petitioner, a licensed commercial truck driver, to transport a load of toys from Massachusetts, to a Wal-Mart store in Iowa. Petitioner picked up the toys which he was to transport in a trailer owned by Hirschbach. He used a Hirschbach owned tractor to haul the trailer (the tractor and trailer will be referred to as the "truck"). The cargo never arrived at its planned destination because petitioner pulled off the road at various points along his route and sold toys from the back of the truck. He was apprehended in Bridgeview, Illinois on November 20, 2001, after a local resident called police to report petitioner's activity. Petitioner was more than two weeks late for the scheduled delivery at the Wal-Mart in Iowa; Hirschbach had not been able to contact him because shortly after departing he had disabled the GPS and text-messaging systems installed in the truck.
On March 29, 2002 petitioner pled guilty based on the above facts to a one-count indictmentcharging him with stealing goods valued at more than $1,000 being shipped interstate in violation of 18 U.S.C. § 659. At sentencing, which occurred on September 11, 2002, petitioner contested two issues under the United States Sentencing Guidelines (the "Guidelines"): (i) the loss amount for purposes of calculating the offense level increase pursuant to Guideline § 2B1.1(b)(1)(E); and (ii) whether petitioner used a "special skill" which significantly facilitated the commission or concealment of the offense pursuant to Guideline § 3B1.3. This court resolved both of those issues against petitioner. The court determined that the amount of loss should include the value of the truck as well as the contents, a total of approximately $111,438. The court accepted the government's recommendation to depart upward three levels because petitioner's criminal history category of VI under-represented his criminal past and the likelihood for recidivism. The court enhanced petitioner's sentence an additional two levels according to Guideline § 3B1.3 because it found that the theft was facilitated by special skill and training, namely petitioner's skill in driving commercial trucks. Petitioner was credited with a two-level reduction in his sentence for acceptance of responsibility. The court imposed a special condition on petitioner's period of supervised release, ordering him to relinquish his commercial driver's license and refrain from being employed as a truck driver. Finally, petitioner was ordered to pay $51,000 in restitution, representing the value of the toys missing at the time the truck was recovered by law enforcement. All of this added up to 63 months in prison and three years of supervised release, plus restitution.
Petitioner took a direct appeal to the Seventh Circuit. See United States v. Smith, 332 F.3d 455 (7th Cir. 2003). On direct appeal he argued that this court erred in applying the Guidelines in four specific ways:
On appeal, Smith contends that the district court erred in including the value of the [truck] in the amount of the theft loss, that the court was obliged to grant a three-level rather than a two-level reduction for acceptance of responsibility under the circumstances, that the special condition of barring him from driving a truck was an excessive deprivation of liberty, and that the court erred in finding that truck driving is a special skill that significantly facilitated the crime.
Id. at 457. The Seventh Circuit remanded, instructing this court to correct its two-level reduction for acceptance of responsibility because Petitioner was in fact entitled to a three-level reduction. This court was also instructed on remand, to clarify the special conditions of supervised release. Petitioner was resentenced in accordance with the Seventh Circuit's opinion on October 21, 2003 to 57 months imprisonment. Petitioner did not appeal from the amended sentencing order.
On October 21, 2004, petitioner filed this motion, collaterally attacking his sentence under 28 U.S.C. § 2255. Petitioner raises three arguments. First, he attacks the merits of the court's application of the Guidelines, arguing that the court incorrectly applied the Guidelines to the facts of his case. Second, he argues that his rights under the Fifth and Sixth Amendments to the United States Constitution were violated when the court based his sentence, in part, on Guideline calculations based on fact-finding by the court under a preponderance of evidence standard, rather than by a jury by proof beyond a reasonable doubt (the "Booker/Blakely argument"; see United States v. Booker, 543 U.S. 296 (2005); Blakely v. Washington, 542 U.S. 296 (2004)). Third, he argues that he received ineffective assistance of counsel both from his attorney in district court and from his attorney on appeal, which amounted to a violation of his rights guaranteed by the Sixth Amendment to the Constitution. The court addresses these arguments in turn.
First, petitioner argues that the district court misapplied the Guidelines. This argument fails because § 2255 is not the proper vehicle to make the argument. Collateral relief under § 2255 is available if any legal error in taking a prisoner's guilty plea or sentencing him subsequent to that plea was "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) (quoting Haase v. United States, 800 F.2d 123, 126 (7th Cir. 1986)). The Seventh Circuit and the Supreme Court have "emphasized [over and over] the difference between direct appeal and collateral attack." Scott v. United States, 997 F.2d 340, 341 (7th Cir. 1993). "A section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal." Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1986).
As a result, there are three types of issues that a section 2255 motion cannot raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal.
Id. (emphasis in original).
Petitioner's arguments as to the court's misapplication of the Guidelines each fall under either the first or the second category of issues that cannot be raised on a section 2255 motion.
On direct appeal Petitioner made four arguments that this court misapplied the Guidelines. See supra p. 3. Because the Seventh Circuit already considered the merits of those arguments, this court is not at liberty to reconsider them. As the Court said in Scott, "[o]ne full and fair opportunity to make arguments under the Guidelines--at sentencing and on direct appeal--is enough." 997 F.2d 340, 342 (7th Cir. 1993). Petitioner has not pointed to any changed circumstances that would allow this court to re-examine the opinion of the Seventh Circuit. The only changed circumstance petitioner points to is the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004). The court will address Petitioner's Booker/Blakely argument separately.
Petitioner also makes an argument attacking the court's application of the Guidelines that he did not make on direct appeal. He argues for the first time that the court should not have accepted the government's recommendation to depart upward because petitioner's history did not reflect the seriousness of past offenses and the likelihood for recidivism. Ordinarily a court cannot consider non-constitutional issues on a section 2255 motion that could have been but were not raised on direct appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992). Petitioner does not explain his failure to raise this argument either before the district court or on direct appeal, other than by stating that "defendant[']s counsel considered it kind of a useless venture. The Blakely [sic] ruling opens the door." This argument is not a constitutional one, but simply a claim that given the facts of petitioner's case, the court erred by ...