The opinion of the court was delivered by: Stiehl, District Judge:
Before the Court are petitioner Steve Jones's pro semotion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Docs. 1 & 4), his supplemental brief (Doc. 6), the Government's response (Doc. 15), and petitioner's reply (Doc. 24). Petitioner's motion presents nine (9) grounds for relief, all based on ineffective assistance of counsel. The supplement contains sixteen (16) grounds, though some overlap with the original motion. Petitioner seeks a new trial, a sentence within the range supported by the jury's verdict, or a sentencing hearing.
Petitioner Steve Jones was incarcerated at the Menard Correctional Center in Menard, Illinois, when he developed a friendship with Correctional Officer Michael Poenitske. Poenitske had a drug problem and mentioned he was looking for a new source for drugs.
Petitioner called some people he knew in Chicago and Southern Illinois to find a supplier. They arranged numerous drug transactions between August and November 2002. Poenitske often purchased more drugs than he needed for his own use and would distribute them to petitioner's associates in Southern Illinois. Petitioner then received money at his prison bank account.
Petitioner argued at trial that Poenitske forced him to make the drug and gun sales. Menard was a restrictive prison, and prisoners had to obey the guards. According to petitioner, Poenitske could shoot him at any time from his house (Tr. Vol. V, 30:16--19).*fn1 Petitioner testified he was afraid Poenitske would plant things in his cell if he refused to provide drug contacts. Poenitske allegedly filed bogus misconduct tickets against petitioner to have privileges taken away. These actions, according to petitioner, eventually "encouraged" him to set up the drug sales. Poenitske also allegedly used to rough him up and threatened to kill him (Tr. Vol. V, 26:4--14). Petitioner complained to several prison officials, but refused to give Poenitske's name because he feared retaliation (id., 29:10--31:3).
The Illinois Department of Corrections (IDOC) intercepted phone calls and letters exchanged among the parties, and that evidence was presented at the jury trial (e.g., Tr. Vol. I, 35--65). Inmates at Menard were generally aware that calls could be monitored and therefore often talked in code. At trial, the Institutional Intelligence Coordinator at Menard, Donald Enloe, described the phone conversations IDOC had intercepted involving petitioner and translated some of the code words. In addition, tapes of the intercepted phone calls were played for the jury. The jury was also given transcripts of the phone calls during the trial.
Also involved in the drug sales was a former Menard inmate named Jau Tolden. Agent Dan Owens of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) approached Tolden about working undercover. Tolden agreed. Petitioner and Poenitske later contacted Tolden about selling him a firearm in exchange for drugs. The firearm in question was one Poenitske had reported stolen.
In March of 2005, a jury convicted petitioner of one count of conspiracy to distribute 50 or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1), and one count of sale of a firearm to a known felon in violation of 18 U.S.C. §§ 2 and 922(d)(1) (Count 2). See United States v. Poenitske et al., Case No. 02-CR-30145-WDS. Petitioner was sentenced to concurrent sentences of 360 months in prison on Count 1 and 120 months on Count 2. He appealed, but his appellate counsel filed a motion to withdraw because she could not discern any non-frivolous arguments. See Anders v. California, 386 U.S. 738 (1967). The Seventh Circuit granted her motion to withdraw and dismissed the appeal in United States v. Jones, No. 05-3881, 2007 WL 1046515 (7th Cir. April 5, 2007).
Relief Under 28 U.S.C. § 2255
"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 . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." § 2255(b).
Grounds for relief pursuant to § 2255 are more limited than grounds for relief on direct appeal. As a general rule, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003); accord Levine v. United States, 430 F.2d 641, 642--43 (7th Cir. 1970). A motion under § 2255 is "neither a recapitulation of nor a substitute for a direct appeal." Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (quoting McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996)); see also 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, 719--20 (7th Cir. 1994) (non-constitutional issues that could have been raised on appeal but were not are procedurally defaulted). Moreover, issues that were already raised on appeal "may not be reconsidered on a § 2255 motion absent changed circumstances." Varela, 481 F.3d at 935--36.
Constitutional issues that were not raised on appeal, however, may be considered if the petitioner can demonstrate either (1) good cause for not raising them on appeal and actual prejudice from not raising them, or (2) that the district court's refusal to consider them would lead to a fundamental miscarriage of justice. McLeese, 75 F.3d at 1177.
Ineffective Assistance of Counsel
An exception to the limitations above are claims of ineffective assistance of counsel. Ineffective-assistance claims may be brought in a collateral proceeding under § 2255 even though the petitioner could have, but did not, raise the issue on direct appeal. Massaro, 538 U.S. at 508.
Under the Sixth Amendment, criminal defendants are guaranteed the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). So long as the defendant's counsel "chooses a professionally competent strategy that secures for the accused the benefit of an adversarial trial," the Sixth Amendment right to effective assistance of counsel has been met. Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th Cir. 1997). Defendants are not entitled to "the best available counsel or the most prudent strategies." Id.
When reviewing a claim of ineffective assistance of counsel, courts apply the two-pronged test from Strickland v. Washington, 466 U.S. 668 (1984). First, petitioners must prove that their counsel's performance "fell below an objective standard of reasonableness." Id. at 688. Second, they must show that, but for their counsel's deficiency, there is a reasonable probability that the outcome would have been different. Id. at 694. Petitioners "must identify the specific acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690.
Petitioner bears a heavy burden to show that counsel was ineffective and that his defense was actually prejudiced. Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006). The reasonableness standard is not meant "to second-guess counsel's strategic decisions." United States v. Recendiz, 557 F.3d 511, 531 (7th Cir. 2009) (quoting Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990)). Courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Jones v. Page, 76 F.3d 831, 840 (7th Cir. 1996) (quoting Strickland, 466 U.S. at 689).
Upon review of the parties' filings and the record, the Court finds that the record conclusively demonstrate that petitioner is not entitled to relief, so an evidentiary hearing is unnecessary. See Menzer v. United States, 200 F.3d 1000, 1006 (7th Cir. 2000).
A. Grounds 1, 7 & Supplement 1
In Ground 1, petitioner argues that his trial counsel, Grant Shostak, was ineffective for failing to call Gary Witherspoon as a witness. Petitioner believes Witherspoon's testimony would have corroborated his defense that he was repeatedly threatened by co-defendant Poenitske into setting up drug contacts and selling a weapon to a felon. Because such testimony was not presented, this Court refused to give a jury instruction on petitioner's defense of duress. Similarly, in Ground 7, petitioner faults trial counsel, Shostak, for not calling any witnesses or the court-appointed private investigator to corroborate the duress defense. He alleges he gave Shostak a list of 25--31 potential witnesses, none of whom was called to testify. Thus, the jury heard only petitioner's admission to the crimes and the prosecution's "overwhelming evidence" and numerous witnesses against him (Doc. 4, pp. 47--48).
In an affidavit prepared before trial, Witherspoon states that he worked with petitioner in the laundry room of Menard Correctional Center (Doc. 4-1, Ex. A). On several occasions, Poenitske asked Witherspoon to leave the laundry room so that he could speak with petitioner privately. Witherspoon once overheard Poenitske yell at petitioner, "Your motherfucking homie better have my shit whenever I go back up there," and, "You better get your ass on the phone and take care of that business" (id.). According to Witherspoon, petitioner had a "scared look on his face" (id.). Shostak tried to introduce the affidavit at trial, but the Government objected on hearsay and authenticity grounds. The Court advised that the better course would be to call Witherspoon to testify. Ultimately, Shostak did not call Witherspoon to the stand.
Petitioner asserts he gave the names of numerous other potential witnesses to Shostak. A relevant sample of their purported testimony includes the following:
* Petitioner's acquaintances Charles Emery and George Habermehl saw Poenitske harass or threaten petitioner, and beat him up.
* Petitioner's cellmate, Trevell Wells, heard Poenitske tell petitioner to keep quiet "because of the heat," and threatened him if he didn't.
* Betty Barrows had complained to the police about Poenitske sexually harassing her and threatening her.
* The counselor at the prison, Tim Miller, would testify about petitioner's verbal complaints that he was being harassed but refused to give the name of the correctional officer out of fear for his safety.
* Petitioner sent written complaints that he feared for his life to the prison superintendent, Al Martin. Petitioner refused to give Martin the name of the officer, however, until ...