The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Joshua Liddell's §2255 motion (Doc. 1). The respondent United States has filed a response in which it opposes Liddell's motion (Doc. 9).
Liddell pled guilty on May 4, 2006 to both counts in the Indictment against him.
Count I charged Liddell with knowingly and intentionally possessing five grams or more of a mixture or substance containing cocaine base ("crack cocaine") with the intent to distribute in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(B) on November 22, 2005. Count II charged Liddell with the same conduct occurring on May 9, 2003. On September 14, 2006, this Court held the sentencing hearing in which it found pending state felony charges did not make Liddell a career offender. It then sentenced him to 120 months imprisonment, five years supervised release, $200.00 special assessment, and a $200.00 fine. The government subsequently appealed the career offender finding to the United States Court of Appeals for the Seventh Circuit which found Liddell to be a career offender and remanded the case for resentencing. United States v. Liddell, 492 F.3d 920 (7th Cir. 2007).
This Court then sentenced Liddell using the career offender guidelines USSG 4B1.1 to a below-guideline sentence of 240 months imprisonment on Count I, 87 months imprisonment on Count II to run concurrently with Count I, and eight years supervised release (the fines remained the same). Liddell then appealed the sentence to the Seventh Circuit and the sentence for Count I was affirmed but the sentence for Count II was remanded. United States v. Liddell, 543 F.3d 877 (7th Cir. 2008) (hereinafter Liddell (II)), cert. denied, Liddell v. United States, No. 08-9853, 129 S.Ct. 2747 (2009). On remand on Count II, the Court sentenced Liddell to 60 months to run concurrently. This sentence was subsequently affirmed. United States v. Liddell, Case No. 07-3373, 349 Fed. Appx. 107 (7th Cir. Oct. 19, 2009). Liddell filed the present petition within the one year statute of limitations on February 18, 2010.
Liddell's petition is not accompanied by an affidavit or memorandum. The Court however interprets his § 2255 to be asserting a claim for ineffective assistance of counsel. In support of this claim, Liddell argues his counsel was ineffective for failing to preserve the issue of the effect of the crack/powder disparity on career offender guidelines for appellate review. On review, the Seventh Circuit reviewed for plain errorwhether a district court can consider the crack/powder disparity as a reason for issuing a below-guideline sentence under the career offender guidelines. Liddell (II), 543 F.3d at 883. Had this argument been made to the district court, the Seventh Circuit would have reviewed the issue de novo which Liddell believes would have secured him a favorable outcome. Id.; (Doc. 1). The Seventh Circuit concluded its discussion by stating "none of this helps this particular defendant because any error here wasn't "plain." Id at 885. He also describes his ongoing rehabilitation while incarcerated where he has completed a Life Connection Program. The Government responded to Liddell's § 2255 and argued Liddell's counsel was not ineffective because counsel cannot be required to anticipate changes in the law and that rehabilitation programs may not be considered in a § 2255 petition. (Doc. 9).
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 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). 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(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
A § 2255 motion does not substitute for a direct appeal. A defendant cannot raise constitutional issues in a § 2255 motion 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. Bousley v. United States, 523 U.S. 614, 622 (1998); 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). Further, a defendant cannot raise non-constitutional issues in a § 2255 motion that he failed to raise on direct appeal regardless of cause and prejudice. Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009); Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000).
A § 2255 motion is not a second chance at a successful appeal. Varela v. United States, 481 F.3d 932, 935(7th Cir. 2007). Applying the "law of the case" doctrine, the Court may refuse to consider issues in a § 2255 motion that a defendant raised on direct appeal where there are no changed circumstances of fact or law. Id.; Fuller v. United States, 398 F.3d 644, 648 (7th Cir. 2005); Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995); Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992).
I. Ineffective Assistance of Counsel
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 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 counsel's 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. The Supreme Court has held ...