The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction, Background and Procedural History
Now before the Court is John M. Wyatt's petition/motion for relief under 28 U.S.C. § 2255 (Docs. 1 & 4) and various motions for relief filed by Wyatt. The Government opposes the petition/motion. Having closely examined the record before it, the Court concludes that an evidentiary hearing is not needed in this matter. See Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002)("for a hearing to be granted, the petition must be accompanied by a detailed and specific affidavit which shows that the petitioner [has] actual proof of the allegations going beyond mere unsupported assertions"); Menzer v. United States, 200 F.3d 1000, 1005 (7th Cir. 2000)(hearing not required where record conclusively demonstrates that a defendant is entitled to no relief on § 2255 motion); Oliver v. United States, 961 F.2d 1339, 1343 n.5 (7th Cir.)(court need not hold evidentiary hearing to decide § 2255 claims that raise factual matters capable of being resolved on the existing record), cert. denied, 506 U.S. 976 (1992). See also, Rules 4(b) and 8(a) of RULES GOVERNING SECTION 2255PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS; Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir. 1989)(judge should dismiss § 2255 petition without hearing, if it appears from the facts of the motion, exhibits, and prior proceedings in the case that the movant is not entitled to relief). Thus, the Court denies Wyattt's motions for hearing (Docs. 18 & 23).
Further, the Court denies Wyatt's motion for appointment of counsel (Doc. 18). Whether to appoint an attorney to represent an indigent § 2255 petitioner is within the sound discretion of the district judge. Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997). There is absolutely no right to appointment of counsel unless the absence would result in fundamental fairness impinging on due process rights, Winsett, 130 F.3d at 281 (citing LaClair v. United States, 374 F.2d 486, 489 (7th Cir. 1967)); see 18 U.S.C. § 3006A(a)(2)(B) ("Whenever ... the court determines the interest of justice so require, representation may be provided for any financially eligible person who ... is seeking relief under section ... 2255 of title 28."). Counsel is required to be appointed only "'if, given the difficulty of the case and the litigant's ability, [the petitioner] could not obtain justice without an attorney, [he] could not obtain a lawyer on [his] own, and [he] would have had a reasonable chance of winning with a lawyer at [his] side."" Id. (quoting Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997)). The Court also has inherent authority to appoint counsel to ensure orderly prosecution of litigation in the district.
After reviewing Wyatt's petition, the Court finds that Wyatt is well able to articulate the contours of his arguments and obtain justice without an attorney, and further, that the absence of counsel will not result in an unfair proceeding impinging on Wyatt's due process rights. In essence, the results would be no different had Wyatt had counsel. Accordingly, the Court denies Wyatt's motion for appointment of counsel (Doc. 18).
On May 24, 2004, Wyatt entered a plea of guilty, pursuant to a conditional plea agreement, to possession with the intent to distribute over 100 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) (United States v. Wyatt, 02-30060-DRH; Docs. 31 & 32). The conditional plea agreement specifically reserved the right to appeal the Court's denial of Wyatt's motion to suppress. On August 30, 2004, the Court sentenced Wyatt to 262 months imprisonment, eight years supervised release, a fine of $500.00 and a special assessment of $100.00 (Id. at Doc. 44). A Sentencing Order and Judgment reflecting the same were entered on August 31, 2004 (Id. at Docs. 43 & 47). On August 24, 2004, Wyatt filed his notice of appeal (Id. at Doc. 48). The Seventh Circuit affirmed Wyatt's conviction and sentencing on May 16, 2005. See United States v. Wyatt, 133 Fed. Appx. 310 (7th Cir. 2005).*fn1 Thereafter, Wyatt filed this § 2255 petition on April 26, 2006 (Doc. 1). On October 11, 2006, Wyatt filed a supplement to his petition (Doc. 4). Wyatt raises a slew (twenty-nine to be exact) of arguments regarding ineffective assistance of counsel during his criminal case.*fn2 On February 5, 2007, the Government filed its opposition (Doc. 12). Wyatt filed a reply on February 28, 2007 (Doc. 13).*fn3
28 U.S.C. § 2255 provides:
A prisoner in custody under sentence of a court established by the 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.
Section 2255 was enacted to provide the court of the district in which a defendant is sentenced the same remedies available by habeas corpus proceedings to the court of the district in which a prisoner is confined. Hill v. United States, 368 U.S. 424, 427 (1962). The grounds for relief under § 2255 are considerably more narrow than the grounds for relief on direct appeal. Relief under Section 2255 is "reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996), citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993). A criminal defendant may attack the validity of his sentence under Section 2255 only if 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 the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.
28 U.S.C. § 2255; Prewitt, 83 F.3d at 816. However, a Section 2255 motion "is neither a recapitulation of nor a substitute for a direct appeal." Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995); see also Daniels v. United States, 26 F.3d 706, 711 (7th Cir. 1994). Therefore,
[a]n issue not raised on direct appeal is barred from collateral review absent a showing of both good cause for the failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or if a refusal to consider the issue would lead to a fundamental miscarriage of justice.
Prewitt, 83 F.3d at 816 (emphasis in original). See also Reed v. Farley, 512 U.S. 339, 354 (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 raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional 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).
Furthermore, a petitioner filing a petition pursuant to 28 U.S.C. § 2255 must state specific facts which describe each ground for relief so that the district court may tell from the face of the petition whether habeas review is warranted. See Rule 2(b) of the Rules Governing § 2255 Cases; see also Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990)(§ 2254 petition). A § 2255 petition cannot stand on vague and conclusory assertions of a constitutional violation; rather, the petition must set forth facts with sufficient detail to point the district court to the real possibility of a constitutional error. See Oliver v. United States, 961 F.2d 1339, 1343 n. 5 (7th Cir. 1992)(holding that a district court may deny a § 2255 motion without a hearing "if the allegations in the motion are unreasonably vague, conclusory, or incredible, or if the factual matters raised by the motion may be resolved on the record before the district court."); see also Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989)(holding that vague or conclusory allegations warrant summary dismissal of § 2255 claims); see also United States v. Aiello, 814 F.2d 109, 113-14 (2nd Cir. 1987)(holding that a § 2255 petition must be based on more than "[a]iry generalities, conclusory assertions and hearsay statements."); see also United States v. Unger, 635 F.2d 688, 691 (8th Cir. 1980) (holding that "[c]onclusory assertions that a defendant's pleas were involuntary and coerced are insufficient."). Because Wyatt is not represented by counsel, his motion must be liberally construed. Blake v. United States, 841 F.2d 203, 205-06 (7th Cir. 1998). With these principles in mind, the Court addresses the merits of Wyatt's petition/motion.
Here, Wyatt has not presented any evidence or argument meriting either a hearing or relief under § 2255 on his Sixth Amendment ineffective assistance of counsel claims. To establish a claim of ineffective assistance of counsel, a petitioner must show two things. First, the petitioner must show that his counsel performed in a deficient manner. Strickland v. Washington, 466 U.S. 668, 687 (1984). "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representations fell below an objective standard of reasonableness." Id. at 687-688. A court, in reviewing a petitioner's claim of ineffective assistance of counsel, must give great deference to the attorney's performance due to the distorting effects of hindsight. Id. at 689. In addition, the petitioner must overcome a strong presumption that the attorney's conduct falls within a wide range of reasonable professional assistance. Id. Second, the petitioner must show that counsel's deficient performance prejudiced him. Id. at 687. A petitioner must show that counsel's errors "actually had an adverse effect on the defense." Id. at 693. Further, the Supreme Court has held that a defendant must show that counsel's errors rendered the proceedings "fundamentally unfair or unreliable" in addition to simply showing prejudice. Lockhart v. Fretwell, 506 U.S. 364 (1993).
Wyatt argues that his retained counsel was ineffective by failing to timely file a writ of certoriari to the Supreme Court. The Court rejects this argument as a ground for ineffective assistance of counsel. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982)("In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), this Court held that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in this Court. ... Since respondent had no constitutional right to counsel, he could not have been deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely."). Furthermore, this Court lacks the authority to reinstate Wyatt's appeal right to the United States Supreme Court. Therefore, the Court denies Wyatt's motion based on this claim.
Wyatt claims that his counsel was ineffective for not challenging the K-9's training records. The Court also rejects this argument. Even had Wyatt's counsel challenged the dog's training, it would not have changed the outcome of the Court's ruling on the suppression issue. This cannot be a basis for ineffective assistance of counsel. Thus, the Court denies this claim.
Claims 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, & 27*fn4
In all of these claims, Wyatt basically claims that his counsel was ineffective for failing to ensure that the suppression hearing record was correct. These claims are without merit. The Court reviewed the suppression pleadings, heard and saw the evidence presented at the suppression hearing and evaluated the witnesses. Based on those things, the Court made an informed decision regarding the validity of the traffic stop and denied the motion to suppress. Moreover, the Seventh Circuit affirmed the Court's denial of the suppression motion. Therefore, these claims cannot serve as grounds for ineffective assistance of counsel and are denied.
In claim 15, Wyatt claims that his "counsel was ineffective when he failed to ensure that my criminal history was properly ...