The opinion of the court was delivered by: Michael M. Mihm United States District Judge
This matter is now before the Court on Petitioner, Carl Holloway's ("Holloway"), Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, Foster's § 2255 Motion [#1] is DENIED.
On November 7, 2004, Holloway pled guilty in the United States District Court for the Central District of Illinois to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). On January 24, 2005, he was sentenced to 51 months' imprisonment by this Court. Holloway did not pursue a direct appeal.
Holloway now brings this § 2255 motion in which he raises essentially six claims: (1) counsel was ineffective at sentencing and failed to file an appeal; (2) he was denied due process when the Government applied prior conviction enhancements without presenting the crimes to a jury; (3) the Sixth Amendment required that a jury determine whether his four prior misdemeanors were related for sentencing purposes under U.S.S.G. 4A1.2; (4) the Court improperly double counted his prior controlled substance conviction, and counsel was ineffective for failing to challenge this double counting; (5) the Court exceeded its authority by determining and assessing prior convictions and thereby inflicting a more severe punishment; and (6) Booker was wrongly decided. The Government has filed its response, and this Order follows.
A petitioner may avail himself of § 2255 relief only if he can show that there are "flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or result in a complete miscarriage of justice." Boyer v. United States, 55 F.2d 296, 298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268 (1995). Section 2255 is limited to correcting errors that "vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude." Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993).
A § 2255 motion is not, however, a substitute for a direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir.), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). Federal prisoners may not use § 2255 as a vehicle to circumvent decisions made by the appellate court in a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Doe, 51 F.3d at 698. Accordingly, a petitioner bringing a § 2255 motion is barred from raising: (1) issues raised on direct appeal, absent some showing of new evidence or changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; or (3) constitutional issues that were not raised on direct appeal, absent a showing of cause for the default and actual prejudice from the failure to appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717, 710-20 (7th Cir. 1994).
I. Ineffective Assistance of Counsel
The seminal case on ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court stated that in order for a prisoner to demonstrate that counsel's performance fell below the constitutional standard, the petitioner would have to show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The courts, however, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 690. A prisoner must also prove that he has been prejudiced by his counsel's representation by showing "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Absent a sufficient showing of both cause and prejudice, a petitioner's claim must fail. United States v. Delgado, 936 F.2d 303, 311 (7th Cir. 1991).
A. Failure to File an Appeal
Before addressing the other claims, the Court must first address Holloway's claim that counsel failed to file an appeal despite his requests that an appeal be filed. Pursuant to the guidance of Roe v. Flores-Ortega, 528 U.S. 470, 477, 484 (2000), and Heiss v. United States, 24 Fed.Appx. 599, 601 (7th Cir. 2001), the Court held an evidentiary hearing on this issue on March 30, 2006, during which both Holloway and his former counsel, Karl Bryning ("Attorney Bryning"), both testified. During the hearing, Holloway testified that he told Attorney Bryning that he wanted to appeal while at the counsel table and again at the podium. Attorney Bryning testified that he had no recollection that Holloway ever requested him to file a notice of appeal on his behalf at either the table or podium or at any other time. He further testified that discussions regarding appeals are the kind of thing that he would have remembered because he takes such matters very seriously and that had he been asked to file a notice of appeal, he definitely would have done so.
Evidence presented during the hearing also established that Holloway made no attempt to communicate with Attorney Bryning for more than five months after the sentencing. When he did communicate by sending two letters in approximately June or July 2005, he asked that counsel send him certain information and documents, but never inquired about or even mentioned the appeal that he purportedly asked counsel to file. The Court finds this lack of even a reference to the alleged appeal to be very significant, as most inmates are quite interested in the status of their appeals. Holloway is no exception to this pattern, as he has demonstrated himself to be a very proficient and prolific communicator, both in this case and his criminal case, where the Court notes that Holloway sent a letter to the Court requesting copies of documents in the record on April 20, 2005, more than a month prior to the time that he first contacted his counsel. Logic would indicate that had Holloway requested counsel to file a notice of appeal, he would at least mentioned or made some attempt to inquire about the status of the appeal in these letters.
The Court must conclude that the weight of the evidence supports a finding that no request to file an appeal was made. There was nothing unusual about Holloway's sentencing, and the record contains no reason or hint of any reason why Attorney Bryning would not have filed a notice of appeal if requested. Furthermore, Holloway had agreed on the record to withdraw his remaining objections at sentencing, so there was really nothing to appeal. The lack of any communication regarding the appeal from a defendant who has shown himself to be a very active participant in his legal proceedings is perhaps the most telling and compels the inference that Holloway did not mention the appeal because he had never asked Attorney Bryning to file any such ...