The opinion of the court was delivered by: J. Phil Gilbert United States District Judge
This matter is before the Court on Marlow's motion to vacate and set aside his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The government has responded to Marlow's motion (Doc. 8) and the matter is now ripe for decision. For the following reasons, his motion will be DENIED.
On April 8, 2003, Marlow pleaded guilty to a two-count indictment charging him with unlawful possession of a firearm (Marlow was a convicted felon) and unlawful possession of materials used to manufacture methamphetamine. (Case No. 02-cr-40075-JPG, Doc. 18). He entered into a non-cooperating plea agreement with the government and, in conjunction with this plea, stipulated to certain facts. (Doc. 8, Exs. 3, 4). After he pleaded guilty, the United States Probation Office prepared a Presentence Investigation Report (PSR) for the Court. Marlow objected to two recommendations in the PSR: the calculation of his criminal history and the two-point enhancement for his possession of a firearm pursuant to U.S.S.G § 2D1.1(b)(1). (02-40075, Doc. 27). At his sentencing hearing, this Court denied his objection to the criminal history calculation (Sent. Tr. at 6) and granted his objection to the firearm enhancement (Id. at 32-33). It then sentenced Marlow to a term of imprisonment of 46 months, 3 years' supervised release, a $200 fine and $200 special assessment. (02-40075, Doc. 28). Marlow did not appeal his sentence.
Marlow filed the instant motion on September 7, 2004. Two of his claims passed initial screening: (1) that his trial counsel was ineffective when he failed to challenge the validity of the search warrant leading to the indictment and failed to argue the applicability of Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000); and (2) that this Court imposed sentence based on evidence obtained in violation of Marlow's rights under the Fourth Amendment. (Doc. 4).
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), and is available only if an error is "jurisdictional, constitutional, 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).
A defendant cannot raise in a § 2255 motion constitutional issues that she could have but did not raise in a direct appeal unless she shows good cause for and actual prejudice from her failure to raise them on appeal or unless the 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. Marlow's Fourth Amendment Claim
Marlow claims his sentence was unconstitutional because the search warrant that led to his arrest and conviction was not supported by probable cause. He claims he was deprived of a full and fair opportunity to litigate its validity. The government claims Marlow waived his right to challenge the search warrant when he entered into a plea agreement and stipulation of facts with the government. It contends that an analysis of the plea agreement discloses that the only issue the parties intended to preserve was the applicability of the § 2D1.1(b)(1) enhancement. As the agreement and stipulation "constitute[d] the entire agreement" between the parties, and Marlow agreed not to contest the validity of the search warrant or the search itself*fn1 , the government believes he has waived this claim. (Doc. 8 exs. 3, 4).
A defendant should not take his decision to plead guilty lightly, for, as this case illustrates, there are serious consequences that attend this decision. When a defendant enters into an unconditional plea of guilty, he waives any non-jurisdictional defect occurring before the plea, including a claim under the Fourth Amendment. United States v. Galbraith, 200 F.3d 1006, 1010 (7th Cir. 2000); United States v. Cain, 155 F.3d 840, 842 (7th Cir.1998) (citations omitted). While it is true a defendant may condition his guilty plea on his ability to seek review of an adverse ruling under Federal Rule of Criminal Procedure 11, Fed.R.Crim.P. 11(a)(2); Galbraith, 200 F.3d at 1010, to do so effectively, "the plea must precisely identify the pretrial issues which the defendant wishes to preserve for review, and must demonstrate that a decision on one of those issues will dispose of the case." Cain, 155 F.3d at 842. Nothing in the plea suggests that it was conditioned upon Marlow's ability to seek review of the validity of the search warrant. A review of the plea hearing transcript similarly fails to disclose any indications of conditionality. If there were any doubt on this issue, which there is not, he expressly agreed in his stipulation of facts that he would not contest the validity of the search warrant leading to his conviction. (Doc. 8 ex. 4). For these reasons, the Court concludes that Marlow waived his right to object to the unconstitutionality of the search warrant on appeal and by collateral attack. Furthermore, as the Court's discussion below shows, its failure to consider this issue will not result in a fundamental miscarriage of justice.
B. Marlow's Ineffective Assistance Claim
To succeed on his ineffective assistance claim, Marlow must show that his counsel's performance "fell below an objective level of reasonableness" and that his error(s) prejudiced the outcome of the proceedings. United States v. Allender, 62 F.3d 909, 913 (7th Cir. 1995) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
In addressing the performance prong of the Strickland test, this Court must defer to counsel's decisions and entertain a presumption that he acted reasonably. United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997). Marlow bears the "heavy burden" of showing that counsel's performance fell well outside the range of professionally competent representation. United States v. Moya-Gomez, 860 F.2d 706, 763-64 (7th Cir. 1998). When it assesses counsel's performance, the Court must look at his actions "in the context of the case as a whole, viewed at the time of the conduct, and there is a strong presumption that any decisions by counsel fall within a wide range of reasonable trial strategies." Valenzuela v. United States, 261 F.3d ...