The opinion of the court was delivered by: Herndon, Chief Judge:
I. Introduction and Background
Pending before the Court is Montgomery's 28 U.S.C. § 2255 petition to vacate, set aside or correct sentence and various supplements to the petition (Docs. 1, 13, 15, 17, 19 & 30). The United States has responded (Docs. 10, 16, & 25). Based on the record and the applicable law, the Court DENIES the petition.
On May 16, 2006, the grand jury charged Calvin C. Montgomery with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). United States v. Montgomery, 06-30071-DRH. At the time of the arraignment on February 8, 2007, Montgomery was represented by Assistant Federal Public Defender Dan Cronin. Thereafter, Montgomery filed a pro se motion to appoint new counsel. On April 18, 2007, the Court held a hearing on Montgomery's motion. During that hearing, Montgomery withdrew the motion. That same day, Montgomery through Cronin filed a motion for psychiatric exam or psychological exam for competency to stand trial which the Court granted on April 19, 2007. On July 24, 2007, Montgomery, pro se. filed another motion to dismiss counsel. On August 10, 2007, the Court held a hearing on the motion to dismiss counsel. granted the motion and allowed Cronin to withdraw from the case. On August 13, 2007, the Court appointed Brian Trentman as counsel for Montgomery and set the competency hearing for August 30, 2007. On August 30, 2007, the Court held the competency hearing and found Montgomery competent to stand trial.
Thereafter, Montgomery through Trentman filed a motion to suppress statements on September 4, 2007. On October 31, 2007, the Court held a lengthy suppression hearing and orally denied Montgomery's motion to suppress finding that Montgomery's statement to law enforcement officers was voluntary and made after a knowing and voluntary waiver of his Miranda rights. Further, the Court set the matter for jury trial on November 26, 2007. The next day, Montgomery through Trentman filed a motion to dismiss based upon post-indictment delay. On November 19, 2007, the Court held a hearing on the motion to dismiss the indictment and denied the motion.
On November 26, 2007, Montgomery pled guilty to the charge of unlawful possession of a firearm by a previously convicted felon, reserving the right to appeal the denial of the suppression of his statement and the denial of the motion to dismiss. On March 20, 2008, the Court sentenced Montgomery to 188 months imprisonment, five years supervised release, and ordered him to pay a fine and a special assessment. Montgomery appealed only the denial of his suppression motion raising three arguments: (1) that agents Heiser and Williams induced his statement with false promises of leniency; (2) that the statement was not voluntary under the totality of the circumstances; and (3) that the police did not scrupulously honor his invocation of his right to remain silent in his first interview with Riddle. During the appeal process, attorneys Robert Parsons and Daniel Cook represented Montgomery. On February 13, 2009, the Seventh Circuit denied his appeal. United States v. Montgomery, 555 F.3d 623 (7th Cir. 2009), and the Supreme Court denied certiorari on May 18, 2009. Montgomery v. U.S., 129 S.Ct. 2413, 173 L.Ed.2d 1319, 77 BNA USLW 3634 (U.S. May 18, 2009).
On May 12, 2010, Montgomery filed his § 2255 petition. In his original petition, Montgomery raised the following three claims: (1) that counsel was ineffective for failing to raise the motion to dismiss issue on appeal; (2) that trial counsel was ineffective for failing to exclude a witness from the courtroom during suppression hearing; and (3) that counsel was ineffective for failing to argue two-step interrogation. Thereafter, the Court allowed Montgomery to supplement his original petition to add these additional claims: (1) that trial counsel was ineffective for failing to show that Agent Heiser lied when Agent Heiser claimed that he could not locate Montgomery; (2) that trial counsel was ineffective for failing to ask Agent Heiser why his indictment was suppressed and (3) that Berghuis v. Thompkins, -- U.S. --, 130 S.Ct. 2250 (2010) reveals that the officers violated his Miranda rights when the officers questioned him after his earlier invocation of the right to remain silent. Lastly, over the government's objection, the Court allowed Montgomery to supplement his petition again to raise a claim pursuant to Buchmeier v. Untied States, 581 F.3d 561 (7th Cir. 2009). The United States has responded to each of Montgomery's claims. As the petition and supplements are ripe, the Court turns to address the merits.
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. More precisely, "[r]elief 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). As a result, "[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); Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Of course, a § 2255 motion does not substitute for a direct appeal. A defendant cannot raise constitutional issues that he could have but did not directly 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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. Meanwhile, a § 2255 motion cannot pursue non- constitutional issues that were unraised on direct appeal regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The only way such issues could be heard in the § 2255 context is if the alleged error of law represents "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).
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 v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Fountain, 211 F.3d at 433-34. Further, 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 that 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.
An evidentiary hearing on a § 2255 habeas petition is required when the motion is accompanied by "a detailed and specific affidavit which shows that the petitioner has actual proof of the allegations going beyond mere unsupported assertions." Barry v. United States, 528 F.2d 1094, 1101 (7th Cir. 1976) (footnote omitted); Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002). "Mere unsupported allegations cannot sustain a petitioner's request for a hearing." Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir. 1989). As will be seen, Montgomery's allegations are unsupported by the record; subsequently, the Court sees no reason to hold an evidentiary hearing on the issues he raises.
Additionally, because a motion under § 2255 is a civil proceeding, a petitioner does not have a constitutional right to counsel. Rauter v. United States, 871 F.2d 693, 695 (7th Cir.1989). In light of the fact that no hearing is required, the Court is not obligated to appoint counsel, and the Court FINDS that petitioner has adequately presented ...