The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on Petitioner Eddie Wayne Adams' (hereinafter "Adams") amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 12), which incorporates and expands upon his original Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1). Adams submitted several memoranda to support his motion, (see Docs. 3, 6, 7, 13), which this Court has previously considered and considers now. The Government filed a Response (Doc. 17) to the instant motion, yet Adams did not reply despite being granted additional time in which to do so. (See Doc. 19).
For the following reasons, the Court, inter alia, DENIES Adams' motion.
On September 7, 2005, a grand jury charged Adams by indictment with one count of attempting to coerce a minor into having sex in violation of 18 U.S.C. § 2422(b). Adams eventually pled guilty to said charge, and this Court held a sentencing hearing on February 2, 2006. At that hearing, the Court determined that, for purposes of the United States Sentencing Guidelines (hereinafter "U.S.S.G."), Adams' total offense level was 23 and his criminal history category was I, which rendered an advisory guideline range of 46 to 57 months imprisonment. However, a 60-month statutory mandatory minimum existed on the charge; accordingly, counsel for Adams, Assistant Federal Public Defender Judy Kuenneke (hereinafter "Kuenneke"), requested and argued that this be the sentence handed down. The Court ultimately sentenced Adams to 84 months imprisonment and 3 years supervised released with a $5,000 fine and $100 special assessment.
Adams never appealed his conviction or sentence, but he did timely file the instant habeas petition. Although Adams made numerous arguments attacking his conviction,*fn1 the Court denied many of these grounds for relief in its Memorandum & Order (Doc. 14) of July 14, 2009, wherein the Court also made clear that subsequent judicial review of his habeas petition would be much more focused. As a result, only the following issues are currently before the Court:
1) Was Adams' 84-month sentence reasonable?
2) Was Adams entitled to prior notice of a possibly enhanced sentence?
3) Was Adams' counsel ineffective in failing to challenge his sentence at the sentencing hearing?
4) Was Adams' counsel ineffective in failing to challenge the sentence on direct appeal? (See Doc. 14, p. 13).
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 (2006). 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 for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (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." § 2255.
Of course, a § 2255 motion does not substitute for a direct appeal. A defendant cannot raise constitutional issues that he could have but did not directly 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, such as, for example, where a defendant is actually innocent of the crime.*fn2 Bousley v. United States, 523 U.S. 614, 622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. Adams' petition does not argue his innocence nor does it raise other sufficient concerns under the latter pathway; as such, he needs to demonstrate good cause for and actual prejudice from his failure to raise the instant issues on direct appeal. This is something he cannot do. Adams' explanation for his failure to appeal is limited to a letter written by Kuenneke on February 14, 2006, wherein she explained to him that "it does not appear that you [Adams] have any appealable issues." (Doc. 12, p. 17). However, in that very same letter, Kuenneke informed Adams that he had ten days from final judgment in which to file a notice of appeal. Kuenneke explained that, if Adams gave her office timely approval, she would file such a notice. She even went so far as to tell him that "the only issue on appeal would be whether or not the sentence of eighty-four months is reasonable," id., thereby negating any excuse as to why he did not appeal that issue. Furthermore, if Adams felt that he was entitled to notice of an upward departure or that he was subjected to ineffective assistance of counsel, these concerns would have been obvious by the time he received said letter. As such, he cannot show good cause in failing to appeal the instant issues. Furthermore, Adams cannot demonstrate actual prejudice stemming from his non-appeal because, for reasons discussed infra, his substantive arguments are without merit.
Each of the issues and Adams' respective arguments will be addressed in kind, however, the Court will be addressing the second ...