The opinion of the court was delivered by: Wayne R. Andersen District Judge
MEMORANDUM OPINION AND ORDER
This case is before the Court on the petition of Donville James, as a prisoner in federal custody, to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court denies the petition. Also before the Court are Petitioner's motion for leave to amend the habeas petition and motion to take custody of files and recording device. For the following reasons, these motions are denied.
In March of 2002, Petitioner engaged in a narcotics transaction with a FBI cooperating informant ("CI") named Allan Dubon, who was working in an undercover capacity. Over the course of several recorded conversations, the CI and Petitioner agreed that Petitioner would provide the CI's alleged cocaine source with counterfeit United States currency in return for powder cocaine. Under heavy law enforcement surveillance, Petitioner met the CI in a parking lot to carry out the deal. After Petitioner showed the CI a bag of counterfeit money, the CI delivered to Petitioner a quantity of simulated cocaine. Agents then arrested Petitioner, and he provided a detailed written confession of the plan to acquire cocaine from the CI's source in exchange for counterfeit money. Petitioner's handwritten statement explained that he planned to buy 15 kilograms of powder cocaine with counterfeit currency and that he planned to give some of the drugs to a member of the Gangster Disciples from whom he had purchased $100,000 of counterfeit currency. Petitioner orally gave agents consent to search his apartment, where they uncovered additional counterfeit currency and various pieces of counterfeit-making equipment, including a computer, two scanners, rubber bands, and a paper cutter. Agents additionally recovered from Petitioner's girlfriends car, which was present at the attempted transaction, a black bag containing $87,430 in counterfeit currency along with black pieces of cut paper.
A grand jury indicted and charged Petitioner on three counts: knowingly attempting to possess with intent to distribute a controlled substance, namely powder cocaine in excess of five kilograms, in violation of 21 U.S.C. 846 (Count One); carrying and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1)(a)(I) (Count Two); and possessing, concealing, and counterfeiting obligations of the United States, namely Federal Reserve notes, totaling $87,430, in violation of 18 U.S.C. § 472 (Count Three).
The Petitioner pled not guilty. Following a five-day trial before this Court, the jury found Petitioner guilty of all three counts on September 10, 2002. On May 31, 2005, this Court sentenced Petitioner to 151 months on Counts One and Three, to run concurrently, and 60 months on Count Two, to run consecutively to Counts One and Three. On July 15, 2005, this Court issued an amended sentencing judgment to clarify that Petitioner was to be sentenced to a total of 211 months.
Petitioner appealed his conviction and sentence on July 14, 2005, raising six claims: (1) that the district court erred when it allowed an FBI agent to testify about prior drug transactions between CI and Petitioner because such statements were hearsay, (2) that these statements are further inadmissible under the Sixth Amendments confrontation clause because he had no opportunity to cross-examine the CI, and are inadmissible as evidence of prior bad acts, (3) that the district court violated the Federal Rules of Criminal Procedure 16(a)(1) when it failed to compel the government to produce the non-functioning recording device worn by the CI on the day of the alleged transaction, (4) that the district court failed to ensure that Petitioner knowingly and voluntarily waived his right to counsel during sentencing proceedings, (5) that sentencing under the advisory guidelines violated Petitioner's Sixth Amendment right to trial by jury because the district court improperly based its calculations on a quantity of drugs that was not found by a jury beyond a reasonable doubt, and finally, (6) that his sentence was unreasonable because the district court failed to account properly for the factors listed in 18 U.S.C. § 3553(a). On June 4, 2007, the Seventh Circuit affirmed his conviction and sentence in United States v. James, 487 F.3d 518 (7th Cir. 2007). Petitioner then filed this motion to vacate his sentence under 28 U.S.C. § 2255 on March 10, 2008.
Collateral relief under 28 U.S.C. § 2255, the federal habeas corpus statute, is only available in those limited situations when there exists "an error of law that is jurisdictional, constitutional or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991). A pro se petitioner can establish a valid claim of error if "any set of facts consistent with the complaint would give him a right to recover, no matter what the legal theory." Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005).
Although within the Seventh Circuit "pro se complaints are to be liberally construed," there are circumstances in which a Court may deny a § 2255 petition without a hearing. McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000). Namely, when "the allegations. 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." Rodriguez v. United States, 286 F.3d 972, 986 (7th Cir. 2002) (quoting Oliver v. United States, 961 F.2d 1339, 1343 n.5 (7th cir. 1992)).
I. Petitioner's Procedurally Barred Claims
Petitioner cannot raise non-constitutional claims in a habeas petition if they were not raised on direct appeal, unless Petitioner can show changed circumstances of fact or law. Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992). Neither can Petitioner raise constitutional claims that he failed to bring on direct appeal unless petitioner can "demonstrate cause for the procedural default as well as actual prejudice from the failure to appeal." Barker v. United States, 7 F.3d 629, 632 (7th Cir. 1993). Thus six of Petitioner's claims, including five constitutional ones, are procedurally barred from being raised in a collateral § 2255 habeas petition.
A. Petitioner's Non-Constitutional Claims
Petitioner claims that the government violated a requirement to preserve original recordings for ten years, under 18 U.S.C. § 2518(8)(a), 18 U.S.C. § 2517(1), (2), (3) and 18 U.S.C. § 2511(2)(c). However, a failure to raise non-constitutional claims on direct appeal flatly bars them from being raised in a habeas petition, absent a showing of changed circumstances of fact or law. Belford, 975 F.2d at 313; see also Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). A § 2255 habeas petition is not a substitute for direct appeal. Olmstead, 55 F.3d at 319. Petitioner has not argued that there has been a change in either the facts or the law regarding this claim. Therefore, Petitioner's claim that the government violated the preservation requirement is procedurally barred and his motion for the Court to take custody of the secret service file and recording device is denied.
B. Petitioner's Constitutional Claims
Petitioner raises five new constitutional claims that he was denied due process of law. Petitioner claims that his due process rights were denied by the government's suborned perjury, the perjury of the government's CI at the Grand Jury indictment, the government's use of false testimony to suppress material evidence, and his entrapment by the government. Petitioner also brings a claim that it was legally impossible for him to have attempted to buy drugs, and that he was legally incapable of so doing. All of these claims are procedurally barred.
Mindful of the importance of "finality, comity, and the orderly administration of justice," federal district courts review of "procedurally defaulted constitutional claim[s] in a petition for habeas corpus is limited." Dretke v. Haley, 541 U.S. 386, 388 (2004). Constitutional claims that Petitioner did not bring on direct appeal cannot be subsequently raised in a § 2255 collateral attack unless petitioner can "demonstrate cause for the procedural default as well as actual prejudice from the failure to appeal." Barker, 7 F.3d at 632. Federal courts adhere to this doctrine not on statutory or constitutional grounds, but "to conserve judicial resources and to respect the laws important interest in the finality of judgments." Massaro v. United States, 538 U.S. 500 (2003).
A Petitioner may ordinarily satisfy the cause requirement by demonstrating that he received ineffective assistance of counsel in his appeal. United States v. Taglia, 922 F.2d 413, 418 (7th Cir. 1991). However, to satisfy cause in this manner, the attorney on direct appeal must have also served as Petitioner's trial counsel. Velarde v. United States, 972 F.2d 826, 827 (7th Cir. 1992) (citing Taglia, 922 F.2d at 418 ("trial counsel . . . can hardly be expected to challenge on appeal his own ineffectiveness at trial"). Because Petitioner had different attorneys representing him in these two proceedings, he fails to satisfy the cause requirement with an ineffective assistance of trial ...