The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before the court on the motion of Alex Ramos to vacate, correct, or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied.
Ramos is a former police officer who worked in the Austin district on the west side of Chicago. In 1996, he and several of his co-workers were investigated for narcotics trafficking. Ramos was specifically identified as serving as an escort for cocaine shipments. He was charged with conspiracy, racketeering, extortion in violation of the Hobbs Act, attempting to distribute multiple quantities of cocaine, and possession of a firearm in connection with a drug offense.
The case was tried to a jury; Ramos did not testify. The jury rendered a verdict of guilt on ten counts, and Ramos was sentenced to a period of incarceration of 44 years and four months, a fine of $5000, and three years' supervised release.
Ramos appealed both his conviction and his sentence to the Seventh Circuit. After both were affirmed, he requested a rehearing, which was denied. Thereafter, he petitioned the Supreme Court for a writ of certiorari. His petition was denied by the Supreme Court six days after the Court issued its opinion in United States v. Booker, rendering the federal sentencing guidelines advisory rather than mandatory. 543 U.S. 220, 125 S.Ct. 738 (2005). He then requested a rehearing, raising the question of the effect of Booker on his situation. The court declined to rehear the petition. Ramos then asked the Seventh Circuit to recall its mandate. This request was also summarily denied. Finally, he moved for a rehearing of the request to recall the mandate. Relying upon the Supreme Court's denial of the rehearing of the petition for certiorari, the Court of Appeals denied the motion for a rehearing. Ramos then timely filed a motion under 28 U.S.C. § 2255 collaterally attacking his sentence.
Section 2255 permits a prisoner to ask the sentencing court to vacate, set aside, or correct a sentence after direct review is completed on the grounds that the sentence was imposed in violation of the Constitution or laws of the United States, or that "the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Such collateral relief is only available, however, where the sentence involved a jurisdictional or constitutional error or results in a complete miscarriage of justice. Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994). In evaluating a § 2255 petition, the district court must review the record and draw all reasonable inferences in favor of the government. Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992).
A district court need not reach the merits of an issue in a § 2255 proceeding unless it has been raised in a procedurally appropriate manner. See Williams v. United States, 805 F.2d 1301 (7th Cir. 1986). When a defendant fails to raise an available claim during direct review, the doctrine of procedural default normally will bar its consideration in a § 2255 motion. Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002). Such a motion is neither a recapitulation of nor a substitute for a direct appeal. See McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). This general rule is subject to two exceptions: where a defendant can satisfy the "cause and prejudice" test of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07 (1977), and where a defendant can show a fundamental miscarriage of justice. See Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 2518-19 (1992).
To proceed under the first exception, a defendant must show that the failure to present a given issue previously was the result of circumstances outside the defendant's control ("cause") and that the errors of which he complains created actual and substantial disadvantage, such that his entire trial was tainted with error of constitutional proportions ("prejudice"). See, e.g., Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 2566 (1991); United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596 (1982). It is not enough for a defendant to make conclusory allegations of cause and prejudice; the burden can only be satisfied by a specific showing of their existence. See, e.g., Norris v. United States, 687 F.2d 899, 900-04 (7th Cir. 1982).
Under the second exception, if a defendant can show a fundamental miscarriage of justice that would result if his claims went unexamined, procedural default will not prevent a court from addressing the merits of a § 2255 motion. See Sawyer, 505 U.S. at 339, 112 S.Ct. at 2518-19. In this context, the phrase "fundamental miscarriage of justice" has been construed to apply only to situations in which a defendant can demonstrate that he is actually innocent of the crime of which he stands convicted. See Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003). Furthermore, if a procedurally defaulted argument does not raise a constitutional issue, it is barred from collateral review. 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, 719-20 (7th Cir. 1994). However, questions of ineffective assistance of counsel are generally exempt from procedural default. Massaro v. United States, 538 U.S. 500, 508-09 (2003). With these principles in mind, we turn our attention to Ramos's motion.
Ramos's first contention centers on an assertion that he is entitled to a resentencing under Booker. He makes many of the same arguments that he set forth in his petition to the Seventh Circuit to rehear his request for a recall of its mandate. He implicitly argues that his sentence, rendered when the guidelines were still mandatory, stands in violation of his Sixth Amendment rights, thereby creating a constitutional error of law. To support his position, he relies on the Supreme Court's ...