The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
Pending before the Court is petitioner Courtney Hurt's 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence (Doc. 1). Hurt's petition contains a slew of arguments regarding ineffective assistance of counsel. Basically, Hurt claims that his attorneys were ineffective during his case-in-chief in trial and during the sentencing phase of his criminal case. Hurt filed a supplement and amendment on August 25, 2011 (Doc. 8). On September 19, 2011, the government responded to the petition (Doc. 10). Hurt filed a reply to the government's response on October 14, 2011 (Doc. 11).
On June 6, 2007, the grand jury indicted Hurt on one count of possession with the intent to distribute 5 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (United States v. Hurt, 07-40047-DRH; Doc. 1). At the time of Hurt's arraignment, June 11, 2007, Magistrate Judge Philip M. Frazier granted Hurt's request for counsel and appointed the Federal Public Defender to represented Hurt (Hurt, Docs. 6 & 9). Assistant Public Defender Judith Kuenneke represented Hurt during the arraignment. This matter was set for trial on July 30, 2007. Thereafter on June 12, 2007, Assistant Public Defender Daniel Cronin entered his appearance on behalf of Hurt (Hurt, Doc. 12).
On June 18, 2007, the government filed an information pursuant to 21 U.S.C. 851, to establish prior conviction (Doc. 16). On July 3, 2007 and July 5, 2007, Hurt filed a motion to continue trial and to supplement trial continuance. The Court denied the motion finding that Hurt and his counsel had sufficient time to prepare for trial based on the charges contained in the indictment (Hurt, Doc. 20). Shortly thereafter, Hurt, by and through his counsel, filed many pretrial motions: motion to permit examination and extrinsic evidence regarding bias of government witnesses involved in drug trafficking (Hurt, Doc. 23); motion for voir dire of law enforcement officers offered as expert witnesses (Hurt, Doc. 25); motion in limine to exclude evidence of, references to and questions regarding defendant's prior convictions, arrests, and criminal conduct (Hurt, Doc. 27); motion in limine to exclude prior statements of individuals arrested in connection with Courtney Hurt's alleged offense (Hurt, Doc. 36); motion in limine to exclude statement of Courtney Hurt the arrest scene (Hurt, Doc. 40); and a motion in limine to exclude expert testimony of law enforcement officers (Hurt, Doc. 42).
On July 30, 2007, prior to the commencement of trial, the Court held a hearing on the motions and orally ruled from the bench (Hurt, Doc. 50). On July 31, 2007, the jury found Hurt guilty of the charges contained in the indictment (Hurt, Docs. 51, 52 & 53). The Court set the matter for sentencing on December 14, 2007.
After trial, Hurt, by and through counsel, filed a motion for new trial which the Court denied on September 24, 2007 (Hurt, Doc. 62). On November 13, 2007, Assistant Public Defender Renee Schooley entered her appearance on behalf of Hurt replacing Mr. Cronin. That same day, Hurt, pro se, filed another motion for new trial (Hurt, Doc. 66). The Court denied that motion as untimely the next day (Hurt, Doc. 67). On November 20, 2007, Ms. Schooley moved to withdraw as counsel for Hurt (Hurt, Doc. 70) and the Court granted the motion and appointed attorney John D. Stobbs to represent Hurt (Hurt, Doc. 71).
On December 4, 2007, the Court continued the sentencing to March 21, 2008 (Hurt, Doc. 75). On March 10, 2008, Hurt, by and through counsel, filed objections to the Pre-Sentence Investigation Report (Hurt, Doc. 76). On March 12, 2008, the Court continued the sentencing to May 16, 2008 (Hurt, Doc. 78). On May 5, 2008, Hurt, by and through counsel, filed another motion for new trial and another motion to continue sentencing (Hurt, Docs. 81 & 82). The Court granted the motion to continue and set the sentencing for June 6, 2008 (Hurt, Doc. 83). Further, the Court denied the motion for new trial (Hurt, Doc. 85). On May 13, 2008, the Court received a letter from Hurt which the Court construed as a motion for new counsel (Hurt, Doc. 86). Based on the letter, Stobbs filed a motion to determine status of representation (Hurt, Doc. 87). On May 23, 2008, the Court held a hearing on the motions, granted the motions and appointed attorney Grant Shostak as counsel for Hurt (Hurt, Docs. 90 & 91). Thereafter, the Court continued the sentencing to July 25, 2008 (Hurt, Doc. 93).
Prior to sentencing, Hurt, by and through counsel, filed a sentencing memorandum (Hurt, Doc. 96). On July 25, 2008, the Court sentenced Hurt to 360 months imprisonment (Hurt, Docs. 98, 102 & 102). On August 1, 2008, Hurt appealed his sentence (Hurt, Doc. 97). The Seventh Circuit Court of Appeals appointed attorney Jason Huber to represent Hurt (Hurt, Doc. 110). On November 12, 2009, the Seventh Circuit issued its mandate affirming Hurt's conviction and sentence (Hurt, Doc. 127).*fn1 United States v. Hurt, 574 F.3d 439 (7th Cir. 2009). The Supreme Court denied Hurt's application for writ of certiorari on March 22, 2010. Hurt v. United States, 130 S.Ct. 1923 (2010).
Thereafter, Hurt, pro se, timely filed his § 2255 petition (Doc. 1). Hurt claims that he received ineffective assistance of counsel in violation of his Sixth Amendment rights. Specifically, Hurt contends that counsel did not research or investigate certain issues relevant to trial, sentencing or the case-in-chief. He also maintains that he was denied the benefit of the Full Faith and Credit Clause via being actual innocent of the career offender as he was neither on parole nor probation or any continuing livelihood pursuant to such convictions and that he suffers from prosecutorial misconduct as he is suffering from an illegal sentence.
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, ...