The opinion of the court was delivered by: Herndon, Chief Judge
Now before the Court is petitioner James E. Rollins, Jr.'s Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255, and his supporting declaration & memorandum (Doc. 1 & Attachment 1). Respondent United States of America ("Respondent" or the "Government") has filed an opposing Response (Doc. 12), to which Petitioner has replied (Doc. 15).
After pleading not guilty (Doc. 100), Petitioner was convicted by a jury on February 13, 2007, as to Counts 1 and 5 of the Indictment (Docs. 1, 414, 418). Count 1 was a charge of conspiracy to manufacture, distribute and possess with intent to distribute diverse amounts of cocaine and fifty grams or more of "crack" cocaine (Doc. 1). In a special verdict, the jury found Petitioner conspired to manufacture, distribute and possess with intent to distribute more than 500 grams but less than 5 kilograms of cocaine (Doc. 415) and less than 5 grams of "crack" cocaine (Doc. 416). Count 5 charged Petitioner with distributing 500 grams or more of a mixture or substance containing cocaine. A special jury verdict found Petitioner distributed more than 500 grams of a mixture or substance containing cocaine (Doc. 418). Petitioner was subsequently sentenced by the undersigned on September 21, 2007, receiving a sentence of 121 months' imprisonment on each of Counts 1 and 5, to run concurrently, with a term of eight years of supervised release afterwards (Docs. 594 & 598).
Petitioner is currently serving that sentence, but wishes to vacate or set it aside based on twenty separate grounds addressed in his § 2255 petition. The first nine are based on Petitioner's various claims of ineffectiveness of counsel. The tenth alleges a claim for denial of due process based on testimony given by an agent from the Drug Enforcement Administration ("DEA"). Eleven through fifteen are based on various claims of prosecutorial misconduct. The final five grounds are based on Petitioner's various claims of court error. Because the Court finds some the issues raised in Petitioner's twenty grounds to be closely related, it will discuss these similar grounds together where appropriate.
Petitioner seeks 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 sentence was in excess of the maximum authorized by law . . . 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"). Therefore, if an issue raised in a § 2255 Petition was not also previously raised on direct appeal, it will be barred from the district court's collateral review unless the petitioner can show either: (1) "good cause for the failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims;" or (2) show that "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) (emphasis in original)(quoting Reed v. Farley, 512 U.S. 339, 354, 114 S. Ct. 2291, 2300 (1994)).
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. Lastly, an evidentiary hearing on a § 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 § 2255 Petition, so that Petitioner may not merely rest of "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)).
B. Ineffective Assistance of Counsel
The Sixth Amendment right to counsel is more specifically stated as the right to effective counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052 (1984). Therefore, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. Basically, the alleged error(s) must be so severe "that counsel was not functioning as the 'counsel' guaranteed [Petitioner] by the Sixth Amendment." United States v. Holman, 314 F.3d 837, 839 (7th Cir. 2002)(citing Strickland, 466 U.S. at 689).
Under Strickland, a party alleging ineffective assistance of counsel must prove (1) that the trial counsel's "representation fell below 'an objective standard of reasonableness,' " and (2) "that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843 (2002)(quoting Strickland, 466 U.S. at 688, 694); see also Davis v. Lambert, 388 F.3d 1052, 1059 (2004)(citing Strickland, 466 U.S. at 688, 694). The Court must keep in mind, however, that its after-the-fact review of counsel's performance is " 'highly deferential,' " and thus, counsel's conduct is afforded a " 'wide range of reasonable professional assistance.' " Bell, 535 U.S. at 702 (quoting Strickland, 466 U.S. at 689). In other words, Petitioner must present evidence that, under the circumstances, conduct of counsel could not reasonably be considered "sound trial strategy." Id. See also United States v. Traeger, 289 F.3d 461, 472 (7th Cir. 2002)(citing Strickland, 466 U.S. at 689-90).
Ground 1: Failure to Call Petitioner as a Witness
Petitioner alleges nine separate grounds of ineffective assistance of counsel in support of his request for habeas relief. The first of these is Petitioner's assertion that his trial counsel denied him the right to testify during his criminal trial (Doc. 1, Attachment 1, pp. 4-8). Petitioner states that during trial, he told counsel he wanted to testify but his counsel never called him to the witness stand. He believes his testimony would have provided evidence supporting his theory of the case and would have countered the Government's evidence. Petitioner further believes his testimony was necessary because his trial counsel did not introduce other evidence countering the Government's theory of liability. Lastly, Petitioner offers that his testimony would have also provided exculpatory evidence potentially resulting in his acquittal.
In response, the Government argues that Petitioner, even if he proves to the Court that he was, in fact, denied his right to testify, cannot meet the Strickland standard of showing that he was prejudiced by this denial. In other words, the Government asserts that Petitioner's own testimony could not dispute testimony from Government witnesses Richard Pittman (one of Petitioner's co-defendants), or Timothy Weddle, that they purchased seventeen kilograms of cocaine and twenty-three ounces of "crack" cocaine from Petitioner, the many hours of recorded wiretapped conversations between Petitioner and several of his co-defendants, nor the testimony of DEA Special Agent McGarry regarding his investigation into Petitioner's drug activities.
The constitutional right to testify on one's own behalf in a criminal proceeding stems from the Fifth, Sixth and Fourteenth Amendments and is " 'essential to due process of law in a fair adversary process.' " Rock v. Arkansas, 483 U.S. 44, 51-52 (1987) (citing Faretta v. California, 422 U.S. 806, 819 n.15 (1975)). However, as the Government cites (Doc. 12, pp. 6-8), the Seventh Circuit in Underwood pondered that "it is simple enough after being convicted for the defendant to say, 'My lawyer wouldn't let me testify. Therefore I'm entitled to a new trial.' " Underwood v. Clark, 939 F.2d 473, 475 (7th Cir. 1991). In fact, Underwood held that such a "barebones assertion," despite being made by a defendant under oath, was "insufficient to require a hearing or other action on [a defendant's] claim that his right to testify in his own defense was denied him." Id. at 476. Further substantiation by a petitioner is therefore necessary to lend credibility to this type of claim, Underwood suggesting something to the effect of an affidavit from the defense counsel who allegedly denied a ...