The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
Now before the Court is Moore's 28 U.S.C. § 2255 petition to vacate, set aside or correct sentence (Docs. 1, 3 & 4). The United States of America filed its response (Doc. 6). Moore did not file a reply. Based on the record and the applicable case law, the Court denies Moore's 28 U.S.C. § 2255 petition.
On August 21, 2007, without the benefit of a plea agreement, Marcus T. Moore pleaded guilty to four counts of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1). United States v. Moore, 07-40017-DRH; Doc. 25. Prior to sentencing Moore filed objections to the presentence investigation report (Id. at 27). On December 18, 2007, the Court sentenced Moore to 188 months imprisonment, the lowest end of the applicable guideline range. Id. Docs. 28 & 32. The Court found that Moore was a career offender and had a total offense level of 31, a criminal history category of VI, and a sentencing range of 188-255 months. During sentencing, Moore was represented by court appointed counsel, Turner Rouse. Thereafter, Moore appealed his sentence and judgment to the Seventh Circuit Court of Appeals. Id. Doc. 34.
On appeal, Moore's court appointed counsel, Richard Parsons, filed an Anders brief claiming that he cannot find a non-frivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). Moore filed a response to his counsel's motion to withdraw and raised several issues. On December 11, 2008, the Seventh Circuit Court of Appeals dismissed Moore's appeal and issued the Mandate on January 5, 2009. United States v. Moore, 07-40017-DRH; Doc. 54; United States v. Moore, 302 Fed. Appx. 483, 2008 WL 5175676.*fn1
On December 15, 2009, Moore filed his 28 U.S.C. § 2255 arguing that his trial counsel was ineffective as he failed to object to an incorrect sentence and failed to identify viable appellate claims. Thereafter, the Court allowed Moore to amend his 2255 petition which he did on January 25, 2010 (Doc. 3).
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. More precisely, "[r]elief 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). As a result, "[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).
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. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. Meanwhile, a § 2255 motion cannot pursue non-constitutional issues that were unraised on direct appeal regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The only way such issues could be heard in the § 2255 context is if the alleged error of law represents "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).
The failure to hear a claim for ineffective assistance of counsel in a 2255 motion is generally considered to work a fundamental miscarriage of justice because often such claims can be heard in no other forum. They are rarely appropriate for direct review since they often turn on events not contained in the record of a criminal proceeding. Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Fountain, 211 F.3d at 433-34. Further, the district court before which the original criminal trial occurred, not an appellate court, is in the best position to initially make the determination about the effectiveness of counsel in a particular trial and potential prejudice that stemmed from that performance. Massaro, 538 U.S. at 504-05. For these reasons, ineffective assistance of counsel claims, regardless of their substance, may be raised for the first time in a § 2255 petition.
An evidentiary hearing on a § 2255 habeas petition is required when the motion is accompanied by "a detailed and specific affidavit which shows that the petitioner has actual proof of the allegations going beyond mere unsupported assertions." Barry v. United States, 528 F.2d 1094, 1101 (7th Cir. 1976) (footnote omitted). "Mere unsupported allegations cannot sustain a petitioner's request for a hearing." Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir. 1989). As will be seen, Moore's allegations are unsupported by the record; subsequently, the Court sees no reason to hold an evidentiary hearing on the issues he raises.
The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). A party claiming ineffective assistance of counsel bears the burden of showing (1) that his trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000). Either Strickland prong may be analyzed first; if that prong is not met, it will prove fatal to plaintiff's claim. Strickland, 466 U.S. at 697; Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993).
Regarding the first prong of the Strickland test, counsel's performance must be evaluated keeping in mind that an attorney's trial strategies are a matter of professional judgment and often turn on facts not contained in the trial record. Strickland, 466 U.S. at 689. The petitoner's burden is heavy because the Strickland test is "highly deferential to counsel, presuming reasonable judgment and declining to second guess strategic choices." United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (quotations omitted). In other words, the Court must not become a "Monday morning quarterback." Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990). With regards to the second prong of Strickland, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Fountain, 211 F.3d at ...