The opinion of the court was delivered by: J. Phil Gilbert, District Judge
This matter comes before the Court on petitioner Michael L. Reed's ("Reed") 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 (Doc. 5).
In April 2004, Reed was indicted on one count of conspiring to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) & 846, and on May 24, 2005, Reed pled guilty without a plea agreement to that charge. On October 7, 2005, the Court held a sentencing hearing at which it heard testimony regarding whether Reed had used a minor in his methamphetamine conspiracy. At the hearing, Detective Ryan Sykes testified that Travis Bramlett had stated in an interview that Reed had given him filters used in the production of methamphetamine when Bramlett was a minor. In contrast, Bramlett testified at the hearing that he had not made that statement and that Reed had not given him the filters. The Court found Detective Sykes to be credible and accordingly assessed Reed two offense level points under United States Sentencing Guidelines Manual ("U.S.S.G.") § 3B1.4 for using a minor in the commission of the offense. Reed's advisory sentencing guideline range was therefore established at 87 to 108 months, and the Court sentenced him to serve 96 months in prison. Without the imposition of the enhancement, Reed's advisory sentencing guideline range would have been 70 to 87 months.
Reed appealed to the Seventh Circuit Court of Appeals arguing that the Court erred in crediting Sykes's testimony over Bramlett's and therefore erred in imposing the two-point enhancement. The Court of Appeals affirmed Reed's conviction and sentence on December 18, 2006. United States v. Reed,No. 05-4028, 2006 WL 3724218 (7th Cir. Dec. 18, 2006) (unpublished decision). Reed did not file a petition for a writ of certiorari from the Supreme Court.
On April 26, 2007, Reed filed a timely § 2255 motion arguing (1) that his counsel was constitutionally ineffective in failing to properly research the government's claims and statements of witnesses; (2) that the prosecutor acted improperly in submitting to the Court knowingly erroneous witness statements; and (3) that he was denied due process when the Court improperly imposed the two-point offense level enhancement under U.S.S.G. § 3B1.4. The government contends Reed's allegations are too vague and, to the extent they relate to the conflicting witness testimony at sentencing, they are meritless.
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.
Neither is a § 2255 motion necessarily a second chance at a successful appeal. Varela v. United States, 481 F.3d 932, 935(7th Cir. 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 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.
A. Ineffective Assistance of Counsel
It appears Reed faults his counsel for failing to do more research and investigate more evidence. He apparently believes that, as a consequence, he did not receive the assistance of counsel guaranteed by the Sixth Amendment. Presumably Reed is referring to his counsel's failure to successfully counter Detective Sykes's testimony regarding Bramlett's prior statement. To the extent Reed intends to ...