The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Fred English's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Government responded to the motion (Doc. 7), and English replied to that response (Docs. 11 & 12). The Court notes that English had asked for additional time to reply to the Government's response (Doc. 9). The Court will grant that motion and will deem English's reply timely.
In or around 2005, English was convicted of a felony in an Illinois court. Following his term of incarceration, he served a term of mandatory supervised release ("MSR") as a part of his sentence for the offense. One of the terms of his MSR agreement provided: "You shall consent to a search of your person, property, or residence under your control." See 730 ILCS 5/3-3-7(a)(10). In January 2010, while English was on MSR, English's parole officer David Taylor wanted to interview English about the possible location of three escaped prisoners with whom English had been housed at some point before their escape.
According to English's affidavit attached to his reply brief, on January 6, 2010, Deputy United States Marshals Clark Meadows and Jim Robertson located English at a gas station and stopped, searched and handcuffed him and then placed him in the vehicle of Illinois parole officer Upchurch. Upchurch told English he was going to conduct a parole compliance check, and the officers took English to his sister's home, where he was living. Finding the residence unlocked, Upchurch and the deputy marshals entered the home without English's or his sister's permission or a warrant and searched the home.
According to Meadows' report of the incident, after identifying English at the gas station, the deputy marshals called Upchurch to tell him they had located English. Upchurch arrived at the gas station, placed English in handcuffs and told him he was going to conduct a parole compliance check of his home. After arriving at English's sister's house, English consented orally to a search of his bedroom.
The search of English's bedroom yielded marihuana, a loaded firearm and ammunition, all of which English admitted belonged to him. A later search yielded a semi-automatic rifle. On January 12, 2010, English was arrested for unlawful possession of a firearm by a felon based on possession of the two firearms and the ammunition. In an interview that day, he again admitted to possessing the firearms, ammunition and marihuana.
On January 21, 2010, English was indicted on one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). On March 11, 2010, English pled guilty to the charge, and on June 24, 2010, the Court sentenced English to serve 120 months in prison. English did not appeal to the Seventh Circuit Court of Appeals.
English signed and mailed this timely § 2255 motion on February 23, 2011. In the motion, he argues that his counsel was constitutionally ineffective in violation of his Sixth Amendment right to effective assistance of counsel because she failed to file a motion to suppress based on (1) the stop at a gas station and (2) the search of his home.
The Government argues that English has not shown that he would not have pled guilty had a motion to suppress been filed or that counsel was deficient for failing to file such a motion.
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. However, "[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). Relief under § 2255 is available only if an error is "constitutional, jurisdictional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255.
A § 2255 motion does not substitute for a direct appeal. A defendant cannot raise in a § 2255 motion constitutional issues that he could have but did not raise in a direct 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. Massaro v. United States, 538 U.S. 500, 504 (2003); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816.
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, 538 U.S. at 504-05; Fountain, 211 F.3d 433-34. In addition, the district court before which the original criminal proceedings occurred, not an appellate court, is in the best position to initially make the determination about the effectiveness of counsel in a particular proceeding and potential prejudice that stemmed from counsel's performance. ...