The opinion of the court was delivered by: Reagan, District Judge
A. Introduction and Background
Now before this Court is James Wendt's petition to vacate, set aside or correct sentence under 28 U.S.C. § 2255. Analysis of the petition begins with an overview of the procedural history of the underlying criminal case (Case No. 04-CR-30103-MJR).
During a July 2004 traffic stop just off Interstate 55/70, Wendt (who claimed to be on a two-day drive from Springfield, Missouri to Green Bay, Wisconsin) consented to a search of his Ford Expedition. The search produced several curious items, including a receipt indicating that Wendt had been in Dallas, Texas that very day (contrary to the details Wendt provided the officers regarding his travel path) and signs of a false compartment on the vehicle (with fresh paint over-spray covering a square welded area). Further inspection revealed both cash and 17 individually-wrapped bundles of cocaine.
Wendt was indicted for possession with intent to distribute cocaine, in violation of 18 U.S.C. § 841. After obtaining additional time to file motions, Wendt moved to suppress the evidence seized during the traffic stop, to suppress all statements he made on the date of that stop, and to quash his arrest. The parties fully briefed the motions, and Wendt supplemented them with what he described as "newly discovered evidence." The Court conducted a hearing June 6 and June 7, 2005, after which the parties were permitted to submit additional written arguments.
Ultimately, in a lengthy written Order, the undersigned Judge denied Wendt's motions to quash and suppress. The Court immediately reset the trial. Four days before trial was scheduled to commence, Wendt decided to plead guilty to the charges against him. On June 23, 2005, Wendt (ably represented by retained counsel from Chicago) entered an open, conditional guilty plea under Federal Rule of Criminal Procedure 11. Wendt and his counsel both signed a detailed Plea Agreement and a "Stipulation of Facts Relevant to Sentencing" (Docs. 89 & 90 in Case No. 04-CR-30103-MJR).
On October 21, 2005, this Court sentenced Wendt to (inter alia) 168 months in prison. Judgment was entered. Wendt appealed, challenging the denial of his suppression motion. On October 19, 2006, the United States Court of Appeals for the Seventh Circuit affirmed this Court's suppression ruling and judgment. U.S. v. Wendt, 465 F.3d 814 (7th Cir. 2006).
On January 17, 2008, Wendt moved to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255. His petition presents four grounds -- two based on perceived errors in the sentence imposed by this Court and two alleging ineffective assistance of counsel. The Government timely responded to Wendt's petition on November 20, 2008. Wendt did not avail himself of the opportunity to file a reply brief by December 29, 2008. Nor has he sought any extension of that deadline.
For the reasons stated below, the Court now dismisses Wendt's § 2255 petition.
An evidentiary hearing is not warranted. The issues raised can be resolved on the existing record, which conclusively demonstrates that Wendt is entitled to no relief. See Rule 8(a) of RULES GOVERNING SECTION 2255 PROCEEDINGS; Almonacid v. U.S., 476 F.3d 518, 521 (7th Cir. 2007); Gallo-Vasquez v. U.S., 402 F.3d 793, 797 (7th Cir. 2005); Galbraith v. U.S., 313 F.3d 1001, 1010 (7th Cir. 2002).
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."
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. See, e.g., Corcoran v. Sullivan, 112 F.3d 836, 837 (7th Cir. 1997)(§ 2255 relief is available only to correct "fundamental errors in the criminal process"). As the Seventh Circuit has declared, § 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 cannot be used as a substitute for a direct appeal or to re-litigate issues already raised on direct appeal. Coleman v. United States, 318 F.3d 754, 760 (7th Cir.), cert. denied, 540 U.S. 926 (2003). AccordTheodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989)(§ 2255 petition "will not be allowed to do service for an appeal."). Wendt did not raise on direct appeal the four issues presented in his § 2255 petition, but another obstacle blocks the review he seeks. Wendt waived his right to collaterally attack the sentence imposed by this Court.
In Section I of the Plea Agreement (Doc. 89 in Case No. 04-CR-30103-MJR, pp. 2-3), Wendt acknowledged that the Plea Agreement and accompanying factual stipulation constituted the parties' entire agreement. He stated that he "read this agreement and ... discussed it with his attorney, and understands it." Id., p. 4. Wendt attested that no promises, inducements or representations other than those specifically set forth in the agreement and stipulation had coaxed him to plead guilty.
Section II of the Plea Agreement set out the charges to which Wendt pled guilty, the Government's calculations as to the likely sentence under the Sentencing Guidelines (range of 188-235 months), Wendt's calculations of the sentence (range of 121-151 months), and the fact that the parties' calculations did not bind the ...