The opinion of the court was delivered by: J. Phil Gilbert, District Judge
This matter comes before the Court on petitioner Lorenzo L. Bolling's ("Bolling") motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The government has responded to the motion (Docs. 7 & 27), and Bolling has replied to the government's second response (Doc. 33).
In July 2003, Bolling was indicted on one count of conspiring to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) & 846, and on December 5, 2003, Bolling pled guilty without a plea agreement to that charge. The indictment did not charge any specific amount or crack cocaine, and Bolling did not admit to any specific amount at his plea hearing. On May 13, 2004, the Court sentenced Bolling to serve 168 months in prison, and on May 19, 2004, Bolling's judgment and commitment order was entered on the docket. Bolling did not appeal the judgment in his case in a timely manner.
In August 2004, Bolling sought to reduce his sentence by a motion in his criminal case based on the June 2004 Supreme Court decision in Blakely v. Washington, 542 U.S. 296 (2004). The Court denied the motion and, at Bolling's request, construed his motion as a notice of appeal. In December 2004, the Court of Appeals dismissed the untimely appeal for lack of jurisdiction.
On March 22, 2005, Bolling filed a timely § 2255 motion arguing that in light of Blakely he should have received a lower sentence and that his counsel was constitutionally ineffective in a variety of ways, including that he failed to file a notice of appeal after Bolling timely asked him to do so.
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.
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 proceedings occurred, not an appellate court, is in the best position to initially make the determination about the effectiveness of counsel in a particular proceeding and potential prejudice that stemmed from that performance. Massaro, 538 U.S. at 504-05. For these reasons, ineffective assistance of counsel claims, regardless of their substance, may be raised for the first time in a § 2255 petition.
III. Resolution of Prior Claims
In an earlier order (Doc. 2), the Court disposed of Bolling's claims based on Blakely and its progeny finding that those cases were not retroactively ...