The opinion of the court was delivered by: Reagan, District Judge
Michael Peyla petitions this Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Having closely examined the record before it, the Court concludes that an evidentiary hearing is not needed on Peyla's § 2255 petition. See Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002) (to obtain evidentiary hearing, § 2255 movant must file detailed and specific affidavit showing he has actual proof of allegations he is making); Menzer v. United States,200 F.3d 1000, 1005 (7th Cir. 2002) (hearing not required where record conclusively demonstrates that defendant is entitled to no relief on § 2255 motion). See also Rule 4(b) and 8(a) ofRULES GOVERNING SECTION 2255PROCEEDINGS.
Accordingly, the Court now rules on Peyla's § 2255 petition, beginning with a summary of the procedural history of the case and a recitation of the key facts.
II. Procedural Background
On July 21, 2004, Peyla was charged, by way of a second superceding indictment, with conspiracy to distribute and possess with intent to distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. § 846 (Count I), and with possession with intent to distribute over 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count II). On August 8, 2005, Peyla entered into an open plea. A two-day sentencing hearing (February 23 and 24, 2006) involved testimony by Peyla and three of his co-conspirators-Jack Williams, Edward Trober and Thomas Dukeman-who testified regarding Peyla's role in the offense. On February 24th, the Court sentenced Peyla to 150 months' imprisonment, five years' supervised release, a fine of $6,000 and a special assessment of $200.
Peyla appealed his sentence to the Seventh Circuit, which allowed trial counsel to withdraw and appointed counsel to represent Peyla for purposes of appeal. The appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 783 (1967), in which he argued that (1) there were no non-frivolous issues regarding Peyla's guilty plea where Peyla did not seek to withdraw his plea in the district court and advised appellate counsel that he did not wish to do so; and (2) any argument challenging Peyla's sentence would be frivolous where his sentence was not imposed in violation of the law, was not the result of an incorrect application of the Guidelines and was not the result of an unreasonable departure from the Guidelines. Doc. 7, Exhibit A.
The Seventh Circuit issued an order directing Peyla to state any basis that would warrant setting aside his conviction. Doc. 7, Exhibit B. Peyla failed to do so, and the appeal was dismissed on December 12, 2006, with an opinion based on the Anders brief. United States v. Peyla, 208 Fed.Appx. 472 (7th Cir. 2006), cert. denied, 127 S.Ct. 2056 (2007), reh'g denied, 127 S.Ct. 2908 (2007).
On August 13, 2007, Peyla filed the instant § 2255 petition arguing that his sentence was improperly imposed. Peyla's § 2255 petition advances four related claims: (1) trial counsel was ineffective in failing to properly advise him of the risks of testifying at his sentencing hearing; (2) trial counsel was ineffective during plea negotiations; (3) trial counsel was ineffective in advising him to reject the Government's sentencing offer; and (4) his sentence was imposed in violation of his right to proof of all factors beyond a reasonable doubt. But for these circumstances, claims Peyla, he would have either taken a plea agreement or refrained from taking the stand at his sentencing hearing.
Having carefully reviewed the arguments and evidence, and for the reasons stated below, the Court finds that Peyla is not entitled to relief under § 2255.
28 U.S.C. § 2255 authorizes a federal prisoner to ask the court which sentenced him to vacate, set aside, or correct his sentence, if "the sentence was imposed in violation of the Constitution or laws of the United States, or... the court was without jurisdiction to impose such sentence, or... the sentence was in excess of the maximum authorized by law...." 28 U.S.C. § 2255. Relief under § 2255 is limited. Unlike a direct appeal, in which a defendant may complain of nearly any error, § 2255 proceedings may be used only to correct errors that vitiate the sentencing court's jurisdiction or are otherwise "of constitutional magnitude." Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993). Accord Corcoran v. Sullivan, 112 F.3d 836, 837 (7th Cir. 1997)(§ 2255 relief is available only to correct "fundamental errors in the criminal process").
The Seventh Circuit has declared that § 2255 relief "is appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004), citing Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991). Accord Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) ("relief under 28 U.S.C. § 2255 is reserved for extraordinary situations").Section 2255 can be used neither as a substitute for a direct appeal nor to re-litigate issues already raised on direct appeal. Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003), cert. denied, 540 U.S. 926 (2003).
Furthermore, a § 2255 petitioner is usually barred from raising issues in a § 2255 petition which could have been, but were not, raised on direct appeal. In this case, however, Peyla is not barred from raising the issue of ineffective assistance of counsel in his § 2255 petition because an ineffective assistance of counsel claim is properly brought in a § 2255 proceeding. Massaro v. United States, 538 U.S. 500, 504 (2003) (holding "that an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.").
Under Seventh Circuit law, counsel is presumed effective and a petitioner "bears a heavy burden in making out a winning claim based on ineffective assistance of counsel."United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995). To succeed, a § 2255 petitioner must show that his counsel's performance fell below an objective standard of reasonableness and that this deficient performance so prejudiced his defense that he was deprived of a fair trial. Id., citing Strickland v. Washington, 466 U.S. 668, 668-94 (1984). Stated another way, under the Strickland test, the petitioner must show that his counsel's actions were not supported by a reasonable strategy and that the error was prejudicial. Massaro, 538 U.S. at 501 (2003).
The first prong of the Strickland test, the "performance" prong, calls for the petitioner to direct the Court to specific acts or omissions forming the basis of his claims. Trevino, 60 F.3d at 338, citing Strickland, 466 U.S. at 690. The Court then must determine whether, in light of all the circumstances, those acts or omissions fell "outside the wide range of professionally competent assistance." Id. While making this assessment, the Court must be "mindful of the strong presumption that counsel's performance was reasonable." Id. Accord Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000) (counsel is presumed effective, and ...