The opinion of the court was delivered by: Herndon, Chief Judge
Now before this Court is petitioner Walter C. Smith, III's, motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The government opposes petitioner's motion (Doc. 3). For the following reasons, petitioner's motion for relief pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED.*fn1
On September 21, 2006, based on evidence obtained through two separate search warrants executed in 2005 and 2006, a grand jury indicted petitioner with one count of conspiracy to possess with intent to distribute cocaine and cocaine base, and seven counts of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). (See United States v. Walter C. Smith, III, 06-cr-30070-DRH, Doc. 29).
As the validity of the underlying search warrants represents a theme of petitioner's grievances raised at the trial level, on appeal, and again in his instant petition, the Court shall briefly detail the relevant history of their procurement. Police suspected petitioner sold drugs out of 1837 Arkansas Avenue, a pink house in Mulberry Grove, Illinois. Thus, they set up surveillance and controlled buys at the premises. These activities provided the probable cause for the search warrants which eventually led to petitioner's indictment. United States v. Walter C. Smith, III, 576 F.3d 762, 763 (7th Cir. 2009), cert. denied, 130 S. Ct. 1029, 175 L. Ed. 2d 629, 78 U.S.L.W. 3360 (2009).
Specifically, on January 21, 2005, Inspector David Dunn obtained the first search warrant for 1837 Arkansas Avenue. Id. at 763. Dunn's search warrant affidavit detailed two covert drug buys conducted with Agent Michael McCartney. The first involved a confidential informant who entered the residence next to 1837 Arkansas Avenue to purchase cocaine from Edith Fletcher. The informant's eavesdropping device enabled Dunn to hear Fletcher say she needed to retrieve the drugs from next door. Dunn then observed Fletcher obtain the drugs from next door. Id.
The second drug buy involved Virgil T. Green. Dunn's affidavit stated that Green entered 1837 Arkansas Avenue and purchased cocaine. However, the transaction actually occurred in the front yard. Concerning this discrepancy, the government explained that the layout of the house made constant surveillance difficult. Thus, the police had to drive around the house in intervals; leaving periods of time where the front of the house was not in view. When Green informed the police he bought drugs from petitioner, the police wrongly assumed the purchase occurred inside the home. Id. at 763-64. The execution of the 2005 search warrant resulted in the recovery of 43.5 grams of powder cocaine, 8.4 grams of cocaine base, 187.9 grams of marijuana, surveillance equipment, and a measuring cup containing cocaine reside which bore petitioner's fingerprints. Id. at 764.
Dunn obtained a second search warrant for drugs and drug-related materials at 1837 Arkansas Avenue, on May 17, 2006. Once again, Dunn's affidavit contained an error, as it stated three controlled drug buys occurred at the residence in 2005. As detailed above, only two controlled buys had taken place at the residence. The government conceded the mistake, labeling it a "scrivener's error." Execution of this search warrant yielded 16.7 grams of cocaine base, 417.8 grams of marijuana, large sums of money, several firearms, and miscellaneous ammunition. Id.
Petitioner filed motions to suppress the fruits of the searches, citing the factual misrepresentations contained in the affidavits (06-cr-30070, Docs. 19, 69). The Court denied his motions, finding petitioner had failed to make the preliminarily showing necessary to obtain a hearing under Franks v. Delaware, 438 U.S. 154 (1978) (06-cr-30070, Doc. 82). Thus, petitioner's case proceeded to trial.
On the fourth day of petitioner's trial, another theme of petitioner's grievances arose, as Juror No. 1 asked to be excused. Upon conducting the appropriate inquiry with Juror No. 1, which was thereafter memorialized on the record, this Court replaced Juror No. 1 with an alternate juror. Juror No. 1 related to the Court that he felt he knew too much about the situation and could no longer remain impartial in rendering a verdict. He further stated that he had made only one comment to another juror, stating, "this testimony is hitting close to home or something to that effect." However, Juror No. 1 could not recall to which juror he had commented. Defense counsel moved for a mistrial, voicing concern that there was no way to discern the effect of Juror No. 1's statement. However, as Juror No. 1 could not identify to which juror he spoke, no other jurors lived close to Juror No. 1, and due to the inherently innocuous nature of Juror No. 1's statement, the Court took no further action and proceeded with the case (06-cr-30070, Doc. 158).
The jury convicted petitioner of all eight counts, and the Court sentenced him to life terms for three counts and 360 months' imprisonment for the remaining five counts, all to run concurrently (06-cr-30070, Doc. 191). Petitioner directly appealed his convictions, arguing the Court erred in denying him a Franks hearing and in its handling of Juror No. 1's misconduct. See Smith, 576 F.3d at 763.
Specifically, petitioner argued the Court erred in denying him a Franks hearing, as the acknowledged factual errors of the search warrants reflected a reckless disregard for the truth that rendered the warrants invalid. The Seventh Circuit denied petitioner's contention, finding the Court's credibility assessment of Dunn; namely, its conclusion that he did not act with reckless disregard for the truth, was not clear error. Further, the court stated, "[e]ven without the misstatements or, as [petitioner] would have it, falsehoods, the information in the affidavits was enough to establish probable cause." Thus, it held the Court was not compelled to give petitioner a Franks hearing. Id. at 765.
Additionally, petitioner argued the Court should not have conducted a meeting off the record and that it should have done more to investigate and remedy any prejudicial effect of Juror No. 1's statement. The Seventh Circuit disagreed, holding the Court did not abuse its discretion in its handling of Juror No. 1's misconduct. Accordingly, petitioner was not entitled to a new trial, and the Court's judgment was affirmed. Id.
Instantly, petitioner's Section 2255 petition raises seven separate claims for relief. The Court shall address petitioner's claims in turn. However, as petitioner's contentions raise arguments either addressed on direct appeal or lacking in merit, petitioner's motion is DENIED.
III. Petitioner's Section 2255 Petition is Denied
A prisoner may move to vacate, set aside or correct his sentence if he claims "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).
Section 2255 is an extraordinary remedy because it asks the district court "to reopen the criminal process to a person who has already had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Accordingly, relief under Section 2255 is "reserved for extraordinary situations," Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993)), as a collateral attack pursuant to § 2255 is not a substitute for a direct appeal. Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007).
Unless a movant demonstrates changed circumstances in fact or law, a movant may not raise issues already decided on direct appeal. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). Further, generally, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003); accord Levine v. United States, 430 F.2d 641, 642--43 (7th Cir. 1970); see also Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United ...