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 Angel Figueroa, 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.
On April 30, 2002, Angel Figueroa was arrested and charged by complaint with conspiring to distribute heroin. At his initial appearance later that day, Figueroa was detained pending trial. On May 24, 2002, the government filed a Motion for Extension of Time in Which to Return Indictment ("First Motion"). Acting Chief Judge Charles P. Kocoras granted the First Motion on May 29, 2002, extending the time to file an indictment to July 30, 2002 ("First Order"). Figueroa was released on bond on July 18, 2002. The government filed a Second Motion for Extension of Time in Which to Return Indictment ("Second Motion") on July 26, 2002. Acting Chief Judge Ruben Castillo granted the Second Motion on July 27, 2002, extending the time to file an indictment to September 30, 2002 ("Second Order").
On September 24, 2002, the grand jury charged Figueroa in a three-count indictment: one count of conspiring to distribute heroin, one count of possessing heroin with intent to distribute, and one count of possessing firearms in furtherance of a drug trafficking crime. A jury trial was held on these charges. The trial commenced on March 15, 2004, and ended on March 23, 2004. The jury could not reach a verdict on the possession with intent to distribute charge and found Figueroa not guilty on the firearms charge. However, Figueroa was convicted of conspiring to distribute heroin. On July 7, 2006, Figueroa was sentenced to 240 months imprisonment and five years supervised release.
Figueroa subsequently appealed his conviction to the Seventh Circuit on April 17, 2007. In his direct appeal, Figueroa argued for the first time that his indictment should have been dismissed pursuant to the Speedy Trial Act because it was not filed within thirty days from the date upon which he was charged by complaint. United States v. Figueroa, 228 Fed. Appx. 611, 612 (7th Cir. 2007). Further, he claimed his right to a speedy trial was violated because he was not tried within 70 days of his indictment. Id. The Speedy Trial Act provides in relevant part:
(b) Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. If an individual has been charged with a felony in a district in which no grand jury has been in session during such thirty-day period, the period of time for filing of the indictment shall be extended an additional thirty days.
(c)(1) In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate judge on a complaint, the trial shall commence within seventy days from the date of such consent.
18 U.S.C. §§ 3161(b)-(c)(1). The Seventh Circuit held that Figueroa waived his rights under the Speedy Trial Act because he did not move to dismiss the indictment before trial and found his contention that he could not have acted before trial because he was not aware of the purported statutory violations to be frivolous. Figueroa, 228 Fed. Appx. at 612. Accordingly, the Seventh Circuit denied Figueroa's appeal and affirmed the district court's judgment on April 19, 2007. Id. at 613.
On November 7, 2007, Figueroa filed the instant petition for relief under 28 U.S.C. § 2255, claiming: 1) his judgment and sentence must be vacated because his speedy trial right to a timely indictment was violated; 2) Figueroa is entitled to a de novo resentencing and hearing on his motion to dismiss for speedy indictment purposes because the district court failed to renew its inquiry whether Figueroa desired counsel at his sentencing proceeding; 3) Figueroa is entitled to a de novo appeal because Figueroa was denied his right to counsel on appeal. On December 4, 2007, government filed a response to Figueroa's motion. At Figueroa's request, the government filed an agreed motion to disclose the First Order on May 28, 2008. On May 30, 2008, this court granted the agreed motion. After gaining access to the First Order, Figueroa filed a reply to the government's response to his habeas petition, arguing for the first time that Acting Chief Judge Kocoras's First Order extending the time to return the indictment was "legally insufficient" and that Figueroa's trial counsel was ineffective because he failed to challenge the validity of the First Order.
Collateral relief under 28 U.S.C. § 2255, the federal habeas corpus statute, is available only in limited circumstances. The statute provides in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.
28 U.S.C. § 2255. Relief, therefore, is limited to "an error of law that is jurisdictional, constitutional, or constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" Bischel v. United States, 32 F.3d 259, 263 (7th Cir. ...