The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court is petitioner Daniel Clifford Alexander's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). Alexander amended his habeas petition in order to incorporate an argument based on the United States Supreme Court's ruling inCunningham v. California, 549 U.S. 270 (2007) (Doc. 2), and further supplemented his habeas petition (Doc. 3). The Government filed its Response in opposition (Doc. 6) and also a supplemental Response (Doc. 10). Thereafter, Alexander filed a Motion for Traverse (Doc. 11), to which the Government has responded (Doc. 12) and Alexander replied (Doc. 13). Lastly, Alexander has moved for appointment of counsel (Doc. 14). Although Alexander seeks an evidentiary hearing, the Court has determined one is unnecessary for it to determine the 2255 petition and the Motion for Traverse on the merits.
Alexander was charged in the underlying federal criminal proceeding, United States v. Alexander, Case No. 05-cr-30197-DRH (S.D. Ill.), with one count of bank robbery in violation of 18 U.S.C. § 2113(a). Alexander pleaded guilty to the charge. His was an open plea -- meaning that Alexander did not enter into a written plea agreement with the Government. Alexander was represented by an assistant federal public defender during his criminal proceedings. Because under the Sentencing Guidelines, Alexander qualified as a "Career Offender," his counsel advised that he enter into a "Sentencing Recommendation Agreement" with the Government (see Doc. 1, Ex. 1). In exchange for the Government agreeing to recommend a sentence of 120 months in light of the factors set forth in 18 U.S.C. § 3553(a), Alexander agreed to waive his appellate rights and his right to seek collateral relief. This Sentencing Agreement, dated June 29, 2006, was filed on the day of sentencing, June 30, 2006. Ultimately, the undersigned judge sentenced Alexander to 120 months' imprisonment, three years supervised release, with a fine of $500, restitution of $112 and a special assessment of $100. Judgment was entered on July 5, 2006. Alexander did not directly appeal this judgment. However, on February 1, 2007, he chose to file this habeas petition seeking collateral review of his federal sentence.
Alexander seeks collateral relief from his federal sentence, pursuant to 28 U.S.C. § 2255, for ineffective assistance of counsel for advising him to enter into the Sentencing Agreement and for later refusing to make a direct appeal, given that Alexander believes he could have prevailed on appeal that he should not have received the "Career Offender" sentencing enhancement.
28 U.S.C. § 2255 provides:
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 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 provides an extraordinary remedy reserved to correct a narrow subset of judicial error. Generally speaking, a § 2255 proceeding may not provide backdoor access for making the kind of garden variety arguments which could have-but were not-made on direct appeal. See Arias v. United States, 484 F.2d 577, 579 (7th Cir. 1973) (error which would require reversal on direct appeal is not reviewable on § 2255 motion unless the error is constitutional or jurisdictional in character); Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) ("non-constitutional issues that could have been but were not raised on direct appeal" are not reviewable on § 2255 motion"). Moreover, the Seventh Circuit has specifically held that errors in the determination of a sentence (without more) are not the proper subject matter of § 2255 review. See Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) ("relief under 28 U.S.C. § 2255 is reserved for extraordinary situations . . . [it] is rarely if ever the proper vehicle by which to challenge the application of a Sentencing Guideline provision where the sentence has become final and the petitioner did not directly appeal the issue"); United States v. Wisch, 275 F.3d 620, 625 (7th Cir. 2001) ("Allegations that the district judge misapplied the sentencing guidelines are not reviewable under § 2255."). However, certain constitutional claims are allowed whether or not they were made on direct appeal:
Although non-constitutional issues cannot serve as an independent basis for section 2255 relief, the fact that the non-constitutional issues were not raised on direct appeal can be used as evidence of ineffective assistance of counsel. Ineffective assistance of counsel, because it is a constitutional issue, can in turn serve as a valid basis for section 2255 relief.
Belford, 975 F.2d at 313, n.1.
Additionally, an evidentiary hearing on a Section 2255 Petition is unnecessary when "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . ." 28 U.S.C. § 2255 (2006). The Seventh Circuit additionally requires a detailed affidavit to substantiate the Section 2255 Petition, so that Petitioner may not merely rest on "mere unsupported assertions." Barry v. United States, 528 F.2d 1094, 1101 n. 31 & 32 (7th Cir. 1976) cert. denied, 429 U.S. 826, 97 S.Ct. 81 (1976). Thus, an evidentiary hearing is not mandatory but, rather, at the discretion of the district court. Prewitt v. United States, 83 F.3d 812, 820 (7th Cir. 1996)(citing United States v. Taglia, 922 F.2d 413, 319 (7th Cir. 1991)).
It is undisputed that Alexander did not directly appeal any of these issues, as he was told he waived his rights to directly appeal pursuant to the Sentencing Agreement. Therefore, the only issue for examination is whether Alexander received ineffective assistance of counsel when he was advised to enter into the Sentencing ...