The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
Now before the Court is Anthony Womack's § 2255 petition (Doc. 1). The Government opposes the petition (Doc. 5). Based on the following, the Court DENIES Womack's petition.
On February 15, 2005, Womack was charged with conspiracy to possess with intent to distribute five or more kilograms of cocaine inU.S. v. Womack, 05-CR-30015-DRH (Doc. 12). On February 23, 2005, attorney John R. Abell was appointed to represent Womack at trial (Womack, Doc 46). On October 19, 2005, a federal grand jury returned a superseding indictment charging Womack with conspiracy to possess with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(ii) (Womack, Doc. 169). Womack's first trial began on March 13, 2006 but ended in a mistrial due to a hung jury (Womack, Docs. 274 & 286). The second trial began on April 3, 2006 (Womack, Doc. 301). On April 5, 2006, the jury found Womack guilty of Count 1 of the Superseding Indictment (Womack, Docs. 306). The Court sentenced Womack to 151 months' imprisonment, five years' supervised release, and was ordered to pay a fine of $1,000, and a special assessment of $100 (Womack, Doc. 462).
Womack filed a notice of appeal on December 6, 2006, seeking to challenge the sufficiency of the evidence, the denial of his motion for new trial, and sentencing errors (Womack, Doc. 469). However, the Seventh Circuit affirmed Womack's conviction and sentence. See United States v. Womack, 496 F.3d 791 (7th Cir. 2007).
Thereafter, Womack filed the instant § 2255 petition on October 3, 2008 (Doc. 1). Womack raises four arguments in his petition, focusing on the ineffective assistance of his counsel. Specifically, Womack argues that his counsel was ineffective in that he: (1) failed to seek a Batson hearing regarding jury composition, (2) failed to challenge an allegedly illegal search and seizure, (3) failed to present evidence regarding his relevant conduct, and (4) failed to seek a jury instruction regarding single and multiple conspiracies. On February 17, 2009, the Government filed a response to Womack's petition (Doc. 5). To date, Womack has not filed a response.
Womack petitions the Court for relief under 28 U.S.C. § 2255, which 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 for § 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 F3d 620, 625 (7th Cir. 2001) ("Allegations that the district judge misapplied the sentencing guidelines are 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.Cf. 81, 50 L.Ed. 2d 88 (1976). Thus, an evidentiary hearing is not mandatory but, rather, at the ...