The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
Now before the Court is Kimo K. Davis' petition/motion for relief under 28 U.S.C. § 2255 (Docs. 1 & 2). The Government opposes the petition/motion (Docs. 7 & 11). Based on the following, the Court DENIES Kimon's petition/motion.
On June 22, 2004, the federal grand jury indicted Kimo Davis on one count of possession with the intent to distribute 50 grams or more of crack cocaine in U.S. v. Davis, 04-CR-30082-DRH (Doc. 1). On July 7, 2004, Assistant Public Defendant Andrea Smith entered her appearance on behalf of Davis (Davis, Doc. 7). On July 20, 2004, a federal grand jury returned a superseding indictment charging Davis with possession with the intent to distribute approximately 68.9 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Davis, Doc. 11). On August 19, 2004, Davis entered an open plea of guilty to the one count superseding indictment (Davis, Doc. 17). The Court sentenced Davis to 120 months imprisonment on December 3, 2004 (Davis, Doc. 22). On December 17, 2004, the Court entered a Judgment and Commitment Order, as well as a Sentencing Order setting forth an alternative sentence as recommended by the Seventh Circuit in light of the uncertainty overcast on federal sentencing by Blakely v. Washington, 542 U.S. (2004) (Davis, Docs. 24 & 25). The Court indicated that if the Sentencing Guidelines were found to be unconstitutional, it would still impose the same sentence of 120 months as his relatively minor criminal background did not warrant increasing his sentence above the 10 year minimum required by the statute. No notice of appeal was filed on behalf of Davis.
Thereafter, Davis filed this § 2255 petition on November 2, 2005 (Doc. 1). Davis also filed a memorandum in support of his original § 2255 petition expanding on his arguments for § 2255 relief (Doc. 2). Davis raises only one argument, arguing that he received ineffective assistance of counsel because his attorney failed to file an appeal on his behalf after he explicitly requested that one be filed. On January 25, 2006, the Government responded to Davis' petition (Doc. 7) and on November 13, 2006, the Government supplemented its response with Assistant Federal Public Defender Andrea Smith's affidavit (Doc. 11). On March 12, 2009, the Court ordered Davis to file a response to the Government's supplement, including an affidavit stating the factual basis for his claim (Doc. 12). To date, Davis has failed to respond to the Court's Order.
Davis petitions the Court for relief under 28 U.S.C. § 2255, which provides:
A prisoner in custody under sentence of a court established by the 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 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.
Section 2255 was enacted to provide the court of the district in which a defendant is sentenced the same remedies available by habeas corpus proceedings to the court of the district in which a prisoner is confined. Hill v. United States, 368 U.S. 424, 427 (1962). The grounds for relief under § 2255 are considerably more narrow than the grounds for relief on direct appeal. Relief under Section 2255 is "reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993)). A criminal defendant may attack the validity of his sentence under Section 2255 only if 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.
28 U.S.C. § 2255; Prewitt, 83 F.3d at 816. However, a Section 2255 motion "is neither a recapitulation of nor a substitute for a direct appeal." Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995); see also Daniels v. United States, 26 F.3d 706, 711 (7th Cir. 1994). Therefore,
[a]n issue not raised on direct appeal is barred from collateral review absent a showing of both good cause for the failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or if a refusal to consider the issue would lead to a fundamental miscarriage of justice.
Prewitt, 83 F.3d at 816 (emphasis in original). See also Reed v. Farley, 512 U.S. 339, 354 (1994). The Seventh Circuit has made it very clear that there are three types of issues that cannot be raised in a Section 2255 motion:
"(1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for ...