The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Karliss Lyttle's ("Lyttle") motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The government responded to the motion (Doc. 9), and Lyttle replied to that response (Doc. 12).
In March 2003, Lyttle was indicted on one count of conspiring to distribute more than fifty grams of crack cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) (count 1) and two counts of distribution of less than five grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (counts 12 & 13). In addition, the government filed an information pursuant to 21 U.S.C. § 851 based on a prior felony drug sentence. Lyttle was represented at the trial level by attorney Susan Gentle ("Gentle").
In August 2003, a jury found Lyttle guilty on all three counts and made a special finding that the conspiracy charged in count 1 involved more than fifty grams of crack cocaine. At trial, the government presented evidence from at least five witnesses that Lyttle was involved in crack cocaine distribution activities, including crack cocaine sales out of co-defendant George McNair's ("McNair") house in Mt. Vernon, Illinois, and transporting co-defendant Robert Barber ("Barber") to St. Louis, Missouri, to purchase crack cocaine for the conspiracy. It also presented a post-arrest statement from Lyttle that he participated in at least some of those drug activities and that he performed house and yard chores for McNair's mother to get money to buy crack cocaine. In addition, the government presented video surveillance tapes of the transactions charged in counts 12 and 13 as well as testimony from the drug purchasers in those transactions. It also presented testimony from forensic chemists that the substances involved in those transactions was crack cocaine.
Lyttle's Presentence Investigation Report's ("PSR") calculated his relevant conduct as 332.46 grams of crack cocaine, which under the United States Sentencing Guideline*fn1 ("U.S.S.G.") § 2D1.1 yielded a base offense level of 34. The PSR recommended imposing a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) because Lyttle possessed a gun during the commission of the offense and no reduction for acceptance of responsibility, yielding a total offense level of 36. The PSR further found that Lyttle's criminal history put him into category I. The PSR recognized that the sentencing range for a level 36 offense with a criminal history I ordinarily would have been 188 to 235 months, but in light of the 20-year statutory minimum sentence for count 1 established by 21 U.S.C. §§ 841(b)(1)(A)(iii) and 851, Lyttle's effective sentencing range for Count 1 was 240 months. See U.S.S.G § 5G1.1(b). This sentence was within the statutory range of no more than 30 years for counts 12 and 13 established by §§ 841(b)(1)(C) and 851.
On April 22, 2004, the Court held a sentencing hearing.*fn2 At the hearing, Lyttle objected to the PSR's relevant conduct calculation as well as its recommendation to impose the gun enhancement and to decline to allow the acceptance of responsibility reduction. The Court rejected Lyttle's objections and, adopting the PSR, found by a preponderance of the evidence that Lyttle's relevant conduct was between 150 and 500 grams of crack cocaine, that the gun enhancement applied and that Lyttle was not entitled to a reduction for acceptance of responsibility. It then sentenced Lyttle to serve 240 months on counts 1, 12 and 13 to run concurrently. It also sentenced him to a ten-year period of supervised release following his imprisonment.
Lyttle appealed to the Seventh Circuit Court of Appeals. On appeal, Lyttle argued that his sentence could not be enhanced under 21 U.S.C. § 851 based on his prior felony drug conviction, which was related to the federal offense for which he was convicted. The Court of Appeals affirmed his conviction and sentence on May 20, 2005, and entered its mandate on June 13, 2005. United States v. Penrod, No. 04-2132, 2005 WL 1253872 (7th Cir. May 20, 2005). Lyttle petitioned the United States Supreme Court for a writ of certiorari, which it denied on October 3, 2005. Lyttle v. United States, 546 U.S. 911 (2005).
Lyttle filed this timely § 2255 motion on July 26, 2006. In it, Lyttle asks the Court to vacate his conviction and sentence because his trial counsel was constitutionally ineffective for (1) failing to interview five witnesses before trial and for failing to call them to testify at trial, (2) failing to object that the evidence presented at trial was insufficient to support a finding that crack cocaine was involved, (3) failing to object to the Court's finding Lyttle's prior conviction by a reasonable doubt, (4) argue that Lyttle was sentenced in violation of Blakely v. Washington, 542 U.S. 296 (2004), a case decided approximately a month after his sentencing and (5) failing to object to the Court's imposition of a ten-year term of supervised release..
In response, the government argues that Gentle's performance did not amount to ineffective assistance of counsel justifying relief under § 2255.
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). "Relief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255.
A § 2255 motion does not substitute for a direct appeal. A defendant cannot raise in a § 2255 motion constitutional issues that he could have but did not raise in a direct appeal unless he shows good cause for and actual prejudice from his failure to raise them on appeal or unless 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 defendant cannot raise in a § 2255 motion non-constitutional issues that he failed to raise on direct appeal regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000).
Neither is a § 2255 motion necessarily a second chance at a successful appeal. Varela v. United States, No. 05-2792, 2007 WL 569854, at * 3 (7th Cir. Feb. 26, 2007). The Court may refuse to consider issues in a § 2255 motion that a defendant raised on direct appeal where there are no changed circumstances of fact or law. Id.; Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995); Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992).
The failure to hear a claim for ineffective assistance of counsel in a § 2255 motion is generally considered to work a fundamental miscarriage of justice because often such claims can be heard in no other forum. They are rarely appropriate for direct review since they often turn on events not contained in the record of a criminal proceeding. Massaro, 538 U.S. at 504-05; Fountain, 211 F.3d 433-34. In addition, the district court before which the original criminal trial occurred is in the best position to initially make the determination about the effectiveness of counsel in a particular trial and the potential prejudice that stemmed from that ...