The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
Clerk, U.S. District Court, ILCD
Before the Court is Petitioner Shane Williams' Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence (RII.1),*fn1
to which the Government has responded. (RII.9). For the
following reasons, Petitioner's Motion is DENIED.
On July 21, 2004, Williams was charged in a five-count Third Superseding Indictment including: Count One: Conspiracy to distribute crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A); Count Two: Distribution of more than 5 grams of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; Count Three: Distribution of more than 50 grams of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2; Count Four: Distribution of more than 50 grams of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2; and Count Five: Possession of firearm during drug trafficking, in violation of 18 U.S.C. § 924(c). (RI.93). On February 9, 2006, Petitioner was found guilty of Counts One, Two, and Four after a jury trial. (R.197).
On January 17, 2007, Petitioner was sentenced to 240 months of imprisonment. (RI. Minute Entry 1/17/07). This Court entered its written judgment on January 19, 2007. (RI.275). Petitioner thereafter pursued a direct appeal challenging the district court's conviction and sentencing. His conviction and sentence were affirmed on December 18, 2007, in a published opinion. United States v. Bailey, 510 F.3d 726 (7th Cir. 2008).
On November 17, 2008, Petitioner filed a motion for Retroactive Application of the Sentencing Guidelines for Crack Cocaine Offenses Pursuant to 18 U.S.C. § 3582. (RI.374). By Order dated December 12, 2008, this Court denied the motion. (RI.377). On October 29, 2008, Petitioner filed the instant Motion to Vacate pursuant to 28 U.S.C. § 2255 in which he alleges that his trial counsel was ineffective for several reasons. Petitioner further alleges that his appellate counsel was ineffective for several reasons.
By Text Order entered on November 26, 2008, this Court analyzed Williams' Petition and found that there could be merit to some of these grounds. Pursuant to Rule 4 of the Rules Governing § 2255 Petitions, the Court ordered the Respondent to file an answer, motion, or other responsive pleading to the Petitioner's claims within 60 days. Respondent complied, and on January 27, 2009 it filed its Response. (RII.9). On May 11, 2009, Petitioner filed his Reply. (RII.13).
Collateral relief under section 2255 is available only if Petitioner 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). However, a section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal. See, e.g., Johnson v. United States, 838 F.2d 201, 202 (7th Cir.1988); Qualls v. United States, 774 F.2d 850, 851 (7th Cir.1985); Norris v. United States, 687 F.2d 899, 900 (7th Cir.1982). As a result, there are three types of issues that a section 2255 motion cannot raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal;*fn2 and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as 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). The latter prong would apply to this case, as Williams' multiple claims all revolve around what he alleges to constitute ineffective assistance of counsel, which is a constitutional issue that was not raised on direct appeal.
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. The 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. Absent a sufficient showing of both error and prejudice, a petitioner's claim must fail. United States v. Delgado, 936 F.2d 303, 311 (7th Cir. 1991).
When a petitioner claims ineffective assistance by appellate counsel, the court looks at the issues available to counsel and decides whether the best of them represented the same kind of strategic choice permitted for trial counsel. "An appellate counsel's performance is deficient if he or she fails to argue an issue that is both obvious and clearly stronger than the issues raised." Martin v. Evans, 384 F.3d 848, 851 (7th Cir. 2004). The court then asks whether raising the issue would have made a difference in the appeal. Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000).
With this background, the Court will proceed to address each of Petitioner's grounds for attacking his sentence.
Ground One: Trial Counsel was Ineffective for Failing to Object to the Admission of Lay Opinion ...