The opinion of the court was delivered by: Herndon, District Judge
Before the Court is petitioner Bobby Dewayne Johnson's Section 2255 Petition, seeking collateral review of his sentence on the ground that it is unconstitutional. Johnson also moves for a ruling on his Petition (Doc. 5) and moves for appointment of counsel (Docs. 3 & 18). For the reasons stated herein, the Court does not find counsel is warranted and, finding an evidentiary hearing unnecessary, further denies Section 2255 relief.
Petitioner Bobby Dewayne Johnson was arrested on October 7, 2001 at a motel in Collinsville, Illinois, after police officers searched him, finding 10.8 grams of crack cocaine and .62 grams of heroin. Johnson had been contacted by a man acting as a police informant who wanted to buy more crack cocaine; the two arranged to meet at the motel for the transaction. The informant was staying at the motel. Previously, police officers had searched his motel room in order to follow up on a lead to a missing person's report. Drugs and drug paraphernalia were found in the motel room. Police officers enlisted the motel room occupant's assistance by persuading him to act as an informant. Working with the police, the informant then contacted his supplier (Johnson) to deliver more crack cocaine. Johnson agreed to meet the informant at his motel room. Upon entering the room, Johnson was apprehended by uniformed police officers.
During his arrest, Johnson began crying, saying he did not want to go to jail. He also told his arresting officers that he had a large heroin habit (about 2 grams per day). Johnson was then taken to the Collinsville Police Department, where on the following day, approximately eleven hours after his arrest, he was advised of his Miranda rights. Waiving these rights, Johnson gave his post-arrest statement, admitting that he had sold "1/16th" (one ounce) of crack cocaine to the informant six times in the past week and a half. Johnson additionally admitted that for the past seven or eight months, he sold one ounce of crack cocaine per day, but that he did not sell heroin; the heroin was for his personal use only. He again made the questioning police officers aware that he was a heroin addict.
Based upon his post-arrest statement, Johnson was indicted by federal grant jury on October 18, 2001 for possession with intent to distribute in excess of five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). The Government also filed an Information as to Sentencing, pursuant 21 U.S.C. §§ 841, 850 and 851, giving notice of sentence enhancement, which would increase the applicable mandatory minimum sentence to 10 years with a maximum sentence of life imprisonment with a doubled term of supervised release (if applicable). This enhancement was based upon Johnson's prior conviction for a felony drug offense.
Johnson pled guilty to the indictment without a settlement agreement from the Government on January 29, 2002. At the Plea Hearing, Johnson stated that he had decided of his own free will to plead guilty. The district court informed Johnson of the mandatory minimum and maximum penalties, but could not yet determine his final sentencing range until it received the Presentence Investigation Report ("PSR"), prepared by the United States Probation Office. Moreover, during the recitation of facts, the Government revealed that it would be using Johnson's post-arrest statement to establish relevant conduct -- namely, distribution in excess of 500 grams of crack cocaine. Johnson was informed that he could contest this amount, but that the relevant conduct would be determined by the Court and not a jury if he pled to the charge. Johnson said he understood and agreed to all except the amount of relevant conduct (over 500 grams), whereby the Court entered his plea of guilty.
Johnson's Sentencing Hearing was conducted on October 3, 2002. Prior to the hearing, the Probation Office submitted the PSR to the Court and the parties for their review. Johnson filed written objections to the PSR, contesting the amount of relevant conduct based on his post-arrest statement. The PSR found the amount of Johnson's relevant conduct consisted of distributing in excess of 1.5 kilograms of crack cocaine (the PSR actually calculated Johnson to have distributed 5.95 kilograms of crack cocaine). Based on the applicable base offense level with the calculated adjustments and criminal history category of III, the PSR concluded Johnson's resulting sentencing range should be from 210 to 262 months.
Johnson believed his post-arrest statement was unreliable and therefore objected to the relevant conduct amount that was based solely upon his post-arrest statement. As support for his challenge, Johnson claimed that at the time he gave police officers his post-arrest statement, he was undergoing severe symptoms of heroin withdrawal, which made him irrational and desperate to get more drugs. Johnson figured that if he gave his post-arrest statement, the police would let him go and he could get his next "fix." Johnson offered expert witness testimony from a neuropharmacologist to explain the effects of narcotics on the brain (specifically heroin). The Assistant Public Defender who represented Johnson during his initial appearance also gave testimony regarding his condition. Medical records documenting Johnson's hospital stay on October 8, 2001*fn1 were admitted for the Court's consideration and a report from another expert, experienced in treating drug addicts, who reviewed the discovery in Johnson's case. In turn, the Government presented testimony from the two police officers -- one involved with Johnson's arrest and the other with his post-arrest interview. Johnson lastly objected to the standard of proof applied for determining his relevant conduct, believing that a standard of proof higher than preponderance of the evidence should be applied.
The Court considered all the evidence presented: the PSR and the parties' briefings regarding their objections to the PSR. Overruling Johnson's objection, the Court found Johnson's post-arrest statement reliable and adopted the findings of the PSR. Additionally, the Court found by a preponderance of the evidence that Johnson's relevant conduct amounted to 1.5 kilograms or more of crack cocaine and sentenced him to 210 months of imprisonment, which was the lowest end of the sentencing range.
Johnson appealed his sentence, maintaining his objection that his post-arrest statement was unreliable and therefore, it was clear error for the district court to consider that information when determining his relevant conduct, compounded by the fact that there was no further evidence of relevant conduct. Secondly, Johnson asserted that as the relevant conduct finding was a quantity of narcotics 500 times greater than what was found on his person the day of his arrest, it amounted to the "tail wagging the dog," because it resulted in a possible three-fold increase of his sentence. Further, Johnson argued that a standard of proof higher than preponderance of the evidence should have been applied to the district court's finding of relevant conduct.
On appeal, the Seventh Circuit, in United States v. Johnson, 342 F.3d 731, 736 (7th Cir. 2003), affirmed the judgment of the district court. According exceptional deference to the district court's credibility determination of the witnesses who testified at Johnson's sentencing hearing,*fn2 the Seventh Circuit "[could not] say that the district court committed clear error in rejecting Johnson's addiction argument and sentencing him based on his post-arrest statement." Id. at 735. Further, the appellate court did not find his post-arrest statement to be inherently unreliable due to his heroin addiction. Id. at 734 (finding that as self-incriminating statements against a defendant's penal interest "'have long been considered reliable enough for use at trial . . . so we cannot say that they are too unreliable for use at sentencing.'")(quoting United States v. Szakacs, 212 F.3d 344, 352-53 (7th Cir. 2000)).
Also rejected was Johnson's argument on appeal that the district court, in finding relevant conduct, should have applied a higher standard of proof. The Seventh Circuit acknowledged that where a factual finding "result[s] in a sentencing increase so great that the sentencing hearing can fairly be characterized as a tail which wags the dog of the substantive offense," a higher standard of proof may be called required. Id. at 735 (quoting United States v. Corbin, 998 F.2d 1377, 1387 (7th Cir. 1993)). However, the appellate court recounted a number of previous cases in which it had "approved the preponderance standard" where the sentencing increase was much greater than Johnson's.*fn3 Id. at 736 and n.4 (reminding of the need for "prosecutorial discretion," underscored by the fact that Johnson's sentence resulted "due to his self-incriminating statement, and the circumstances in which he gave it . . . ."). Subsequent to the issuance of the Seventh Circuit's decision, Johnson then filed thisSection 2255 Petition, seeking to vacate, set aside or correct his sentence.
Section 2255 provides, in pertinent part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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 sentence, or that sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
However, a Section 2255 Petition "is neither a recapitulation of nor a substitute for a direct appeal." Omstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995)(quoting Daniels v. United States, 26 F.3d 706, 711 (7th Cir. 1994)). Therefore, if an issue raised in a Section 2255 Petition was not also previously raised on direct appeal, it will be barred from the district court's collateral review unless the petitioner can show either: (1) "good cause for the failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims;" or (2) show that "a refusal to consider the issue would lead to a fundamental miscarriage of justice." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996)(emphasis in original)(quoting Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 2300 (1994)).
The Seventh Circuit has made it very clear that there are three types of issues that cannot be raised in a Section 2255 motion:
(1) issues that were rased on direct appeal, absent showing of changed circumstances; (2) non consitutional 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.
Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds, Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).
This procedural bar does not apply, however, to ineffective assistance of counsel claims as these may be brought in a Section 2255 Petition even if not previously raised on direct appeal. Massaro v. ...