The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Elgin Curb's (Curb) pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Section 2255). For the reasons stated below, the Section 2255 motion is dismissed.
On September 8, 2008, Curb pled guilty to Count I of the indictment in case number 06 CR 324. On June 3, 2009, Curb was sentenced to 270 months of imprisonment. On December 13, 2011, based on an amendment to the sentencing guidelines, Curb's sentence was reduced to 235 months of imprisonment. Curb now moves to have his sentence vacated pursuant to Section 2255.
Section 2255 provides that "[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. The relief sought in a Section 2255 Motion "is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." Id.
Curb argues: (1) that the Government committed prosecutorial misconduct, and (2) that his trial and appellate counsel were ineffective. This court has liberally construed Curb's pro se filings. See Greer v. Board of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001)(indicating that a court should "liberally construe the pleadings of individuals who proceed pro se").
I. Prosecutorial Misconduct Allegations
Curb contends that the Government committed prosecutorial misconduct.
Curb contends that the Government failed to correct testimony by Lamont Harris (Harris) that the Government knew to be false and misleading. In order to establish prosecutorial misconduct based on the submission of perjured testimony, a defendant must show that: "(1) the prosecution's case included perjured testimony;
(2) the prosecution knew or should have known of the perjury; and (3) there is a reasonable likelihood that the false testimony could have affected the judgment of the jury." Shasteen v. Saver, 252 F.3d 929, 933 (7th Cir. 2001); see also United States v. Freeman, 650 F.3d 673, 683 (7th Cir. 2011)(stating that "[t]he inquiry is two-fold: first, whether there was prosecutorial misconduct; second, whether it prejudiced the defendant").
On January 13, 2009, the court held an evidentiary hearing on the issue of whether Curb should receive a managerial enhancement to his offense level at sentencing. The Government presented testimony by Harris at the hearing. Curb has failed to point to any evidence showing that Harris presented false or misleading testimony or that the Government knowingly allowed Harris to present false or misleading testimony. The mere fact that Curb disputes the truthfulness of Harris' testimony is not sufficient to show prosecutorial misconduct. Finally, even if Curb could show that false or misleading testimony was ...