The opinion of the court was delivered by: Michael M. Mihm United States District Judge
This matter is now before the Court on Petitioner, Rashann Grier's ("Grier"), Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, Grier's § 2255 Motion [#1] is DENIED.
On July 21, 2005, Grier was indicted on charges of conspiracy to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). He pled guilty to the Indictment and was sentenced to 275 months' imprisonment and 10 years' supervised release. Grier pursued a direct appeal to the Seventh Circuit, and the Court of Appeals issued a limited remand for resentencing pursuant to United States v. Taylor, 520 F.3d 746 (7th Cir. 2008). On remand, his sentence was reduced to the statutory mandatory minimum of 240 months' imprisonment, and the Court of Appeals subsequently dismissed the appeal.
Grier now brings this § 2255 motion in which he argues that counsel was ineffective for failing to properly object to inaccuracies in the presentence report and for inducing him to enter a guilty plea based on false promises. The Government has filed its response, and this Order follows.
A petitioner may avail himself of § 2255 relief only if he can show that there are "flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or result in a complete miscarriage of justice." Boyer v. United States, 55 F.2d 296, 298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268 (1995). Section 2255 is limited to correcting errors that "vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude." Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993).
A § 2255 motion is not, however, a substitute for a direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir.), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). Federal prisoners may not use § 2255 as a vehicle to circumvent decisions made by the appellate court in a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Doe, 51 F.3d at 698. Accordingly, a petitioner bringing a § 2255 motion is barred from raising: (1) issues raised on direct appeal, absent some showing of new evidence or changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; or (3) constitutional issues that were not raised on direct appeal, absent a showing of cause for the default and actual prejudice from the failure to appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717, 710-20 (7th Cir. 1994).
Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment. Watson v. Anglin, 560 F.3d 687, 690 (7th Cri. 2009). The seminal case on ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court stated that in order for a prisoner to demonstrate that counsel's performance fell below the constitutional standard, the petitioner would have to show that "counsel's representation fell below an objective standard of reasonableness." Id., at 687-88; Wyatt v. United States, 574 F.3d 455, 458-59 (7th Cir. 2009). Courts, however, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 690. A prisoner must also prove that he has been prejudiced by his counsel's representation by showing "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In the context of a guilty plea, ineffective assistance requires a showing of a reasonable probability that, but for the errors of counsel, he would not have pled guilty but rather would have insisted on going to trial. Wyatt, 574 F.3d at 458. Absent a sufficient showing of both cause and prejudice, a petitioner's claim must fail. United States v. Delgado, 936 F.2d 303, 311 (7th Cir. 1991).
Grier first argues that his counsel at sentencing was ineffective for failing to properly object to inaccuracies in the presentence report, which were relied on by the Court in establishing his base offense level. Specifically, he complains about a 2-level enhancement that he received for being a leader or organizer in the conspiracy and the overstatement of the drug quantity used to calculate his base offense level. Initially, the Court notes that these issues were raised by counsel at sentencing, as discussed below. However, Grier has waived these sentencing issues by failing to challenge them on direct appeal.
In Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996), the Seventh Circuit held that a habeas petition is rarely, if ever, the correct way to challenge an application of Sentencing Guidelines where the sentence has become final and the issue was not raised on appeal. The underlying Guidelines issues are issues that could have been raised by new counsel during his direct appeal to the Seventh Circuit, but were not.
An 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 v. United States, 83 F.3d 812, 816 (7th Cir. 1996), citing Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 2300 (1994); Dawson v. United States, 77 F.3d 180, 183 (7th Cir.1996); McCleese, 75 F.3d at 1177-78. As Grier failed to make any such challenges on direct appeal, and has not indicated how this failure could be attributed to ineffective assistance of counsel given the fact that he had different counsel appointed to represent him on direct appeal, he has waived any such claims.*fn1
However, Grier argues that in order "to reveal the full deprivation of his constitutional rights," this purported error of counsel must be analyzed in light of his claim that his counsel improperly coerced him into pleading guilty with false promises of a lesser sentence. As his advisory guideline range was higher than counsel had predicted, he argues that the departure that he obtained through providing substantial assistance to the Government "lost its essence." Grier argues that his counsel had a duty to object to bring the quantity in line with what had allegedly been promised prior to the entry of his plea. As a result, he argues that he should be allowed to withdraw his plea and decide whether he wants to plead guilty with a full knowledge of the amount of cocaine base that would be attributed to him and provide assistance to the government, or alternatively go to trial.
Grier's current protestations are undermined by the record in this case. After confirming Grier's education and that he was not under the influence of any drug, medication, or alcoholic beverage, the Court and Grier engaged in the following colloquy:
Q: Have you fully discussed those charges and the case in general, including any possible defenses that you might have, with Mr. Lonergan as your attorney?
Q: Are you fully satisfied with the counsel, representation and advice given to you in this case by Mr. Lonergan?
The Court: Mr. Lonergan, do you have any agreement or understanding with the ...