The opinion of the court was delivered by: Gilbert, District Judge
Petitioner Eddie Wayne Adams entered an open plea of guilty to one count of attempting to coerce a minor into sexual activity, in violation of 18 U.S.C. § 2422(b). He was sentenced to 84 months imprisonment, three years supervised release, a $5000 fine, and a special assessment of $100. No appeal was filed, and nine months later he filed this action pursuant to 28 U.S.C. § 2255.
Now before the Court is Adams's motion to amend his § 2255 motion (Doc. 12); his amended § 2255 is contained within the text of the instant motion, and it incorporates by reference all claims included in his prior pleadings. The original § 2255 motion (Doc. 1) is just four pages long and, as grounds for relief, Adams simply states "ineffective assistance of counsel" and then refers to his supporting memorandum (Docs. 3, 6, 7). This motion is GRANTED, as is his motion to expand the record (Doc. 11).
For clarity, virtually all of Adams's assorted grounds for relief are mentioned in his amendment (Doc. 12), with further briefing contained in his addendum (Doc. 3), his memorandum in support (Doc. 6), his supplemental brief (Doc. 7), and his supplement (Doc. 13).
Relief under Section 2255 is "reserved for extraordinary situations." Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993); Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). 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. 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). 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. 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 the procedural default as well as actual prejudice from the failure to appeal.
United States v. Belford, 975 F.2d 310, 313 (7th Cir. 1992) (footnote omitted).
One of the most common methods of raising issues that might otherwise be barred in a Section 2255 motion is for a petitioner to claim that counsel was ineffective at trial, at sentencing, or on direct appeal. To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate: (1) deficient performance by counsel and (2) resulting prejudice from that deficient performance. Strickland v. Washington, 466 U.S. 668, 694 (1984); Precin v. United States, 23 F.3d 1215, 1218 (7th Cir. 1994). To show this deficient performance by counsel, a petitioner bears the "heavy burden" of showing that counsel's performance fell well outside the range of professionally competent representation. United States v. Moya-Gomez, 860 F.2d 706, 763-64 (7th Cir. 1988), cert. denied, 492 U.S. 908 (1989). In making this assessment, a court must employ a "highly deferential lens, indulging a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance." United States ex rel. Partee v. Lane, 926 F.2d 694, 700 (7th Cir. 1991), cert. denied, 502 U.S. 1116 (1992).
To satisfy the "prejudice" component, a petitioner must show that the errors committed by counsel rendered his trial and sentencing fundamentally unfair or the result unreliable. See Lockhart v. Fretwell, 506 U.S. 364 (1993); Nichols v. United States, 75 F.3d 1137, 1141 (7th Cir. 1996). Further, "[a] court does not have to analyze both prongs of the Strickland test. A [petitioner's] failure to satisfy either prong is fatal to his claim." Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993) (citations omitted).
In his motion and supporting memorandums, Adams raises the following substantive challenges to his conviction and sentence:
! unconstitutionality of the PROTECT Act and its Feeney Amendment ! unconstitutionality of 18 U.S.C. § 2422(b) ! defective indictment ! no showing of interstate commerce nexus ! unconstitutionality of mandatory minimum sentences ! insufficient evidence ! misapplication of sentencing factors
Each of these arguments could and should have been raised on direct appeal, but Adams did not file a direct appeal. Instead, he wraps each of his arguments in the shroud of one of two variations of ineffective assistance of counsel. For some issues, Adams asserts that Counsel failed to raise these issues with this Court or on direct appeal. For other, he claims that Counsel failed to advise him of these issues, thus implicating the voluntariness of his guilty plea. The Court will address each of the underlying claims to determine what, if any, prejudice Adams suffered. If the Court finds that he may have been prejudiced, the Court will then determine whether Counsel's performance was deficient.
CONSTITUTIONALITY OF THE PROTECTACT AND FEENEY AMENDMENT
Adams's addendum (Doc. 3) is dedicated to an attack on the PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003) and the related Feeney Amendment, Pub. L. No. 108-21. § 401 (2003). He expounds eloquently on the doctrine of separation of powers and the history of the Feeney Amendment before finally getting to the point: the Feeney Amendment changed the manner of selecting individuals to serve on the Sentencing Commission, the group charged with formulating the United States Sentencing Guidelines. Adams believes that the Commission is now heavily weighted with representatives of the Executive Branch of the federal government (i.e., prosecutors), rather than by members of the Judiciary. He also states that the Feeney Amendment removed judicial discretion to award a third point for "acceptance of responsibility" unless such a request was initiated by the Prosecutor. Finally, he points out that any downward departure not initiated by the prosecution must be reported to the Attorney General, as well as both Judiciary Committees.
His argument proceeds: because the Feeney Amendment violates the separation of powers, it must be struck down as unconstitutional. Thus, the Sentencing Guidelines promulgated by the Commission must also be declared unconstitutional. Finally, despite the severability clause contained in the PROTECT Act (at 651), Adams argues that the ...