The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Joseph Sanders' ("Sanders") 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. 3), and Sanders replied to that response (Doc. 7).
In May 2004, Sanders was indicted by a grand jury on one count of possessing a weapon in prison while a federal prison inmate at the United States Penitentiary at Marion, Illinois ("USP-Marion"). On June 3, 2004, a magistrate judge arraigned Sanders on the charge, entered a guilty plea on his behalf and appointed the Federal Public Defender ("FPD") to represent Sanders. He did not schedule a preliminary hearing to establish probable cause.
During a bench trial on July 18, 2005, the government presented, among other pieces of evidence, a videotape from a surveillance camera inside USP-Marion that showed a correctional officer taking an object out of Sanders' shoe in the hallway outside Sanders' cell. Other evidence showed that the object was a makeshift knife wrapped in toilet paper and cellophane, which was covered with fecal matter. A government witness explained at trial that the videotape did not contain audio recordings because USP-Marion's surveillance cameras had no audio recording mechanism. The Court found Sanders guilty.
At the March 17, 2006 sentencing hearing, the Court found that the offense level for Sanders' offense was 13, but that Sanders was a career offender under United States Sentencing Guideline Manual ("U.S.S.G.") § 4B1.1, which raised his offense level to 17. His career offender status also established his criminal history category as VI. His sentencing range was 51 to 60 months, capped at the top end by the 60-month statutory maximum sentence. See 18 U.S.C. § 1791 (b)(3) & (d)(1)(B). The Court sentenced Sanders to serve 60 months consecutive to the term he was serving at the time and noted that, even if Sanders had not been a career offender, the Court would have imposed that sentence based on the factors in 18 U.S.C. § 3553(a).
Sanders appealed, arguing that his conviction should be overturned because prison officials improperly destroyed the toilet paper and cellophane, because the government did not notify him before trial that one witness was present when Sanders told a correctional officer he would be able to get another weapon, and because the Court erred in finding he was a career offender. The Seventh Circuit Court of Appeals affirmed his conviction on November 2, 2006, and issued its mandate on November 27, 2006. United States v. Sanders, No. 06-1832, 2006 WL 3154384 (7th Cir. Nov. 2, 2006). Sanders did not petition the United States Supreme Court for a writ of certiorari.
Sanders filed a timely motion for relief under 28 U.S.C. § 2255 in which he raises four grounds for relief: (1) that his attorney failed to follow his instructions and he was denied a preliminary hearing; (2) that his Fourth Amendment rights were violated with respect to his arrest; (3) that the Court erroneously determined that he was a career offender; and (4) that audio evidence on the videotape recording was improperly removed.
In response, the government argues that Sanders has procedurally defaulted his claims.
To the extent Sanders alleges ineffective assistance of counsel, the government argues that Sanders' counsel's performance was not constitutionally deficient and/or were not prejudicial to his case.
In reply, Sanders throws himself on the mercy of the Court.
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 if an error is "constitutional, jurisdictional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997) (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. ...