The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
Now before the Court is Strahan's 28 U.S.C. § 2255 petition to vacate, set aside or correct sentence (Doc. 1). The government opposes the petition (Doc. 8). Strahan filed a reply (Doc. 12). Based on the record and the applicable law, the Court DENIES the petition.
On March 15, 2005, the grand jury charged John McCray, Jr., John McCray, Sr., Mitchell Brown, Eugene Falls and Strahan for conspiracy to distribute crack cocaine and heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. United States v. Strahan, 05-30027-DRH. The grand jury also charged Strahan with distributing cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). On October 5, 2005, the Court appointed attorney Steven Stenger to represent Strahan. Id. at Doc. 90.
On May 3, 2006, the government filed a notice of intent to seek increased punishment because Strahan had two prior state convictions for delivery of controlled substances. Id. at Doc. 140.*fn1 On May 22, 2006, Strahan filed an objection and response to the government's intent to seek increased punishment. Id. at Doc. 154. All of the co-defendants, except for Strahan, pleaded guilty and agreed to testify against Strahan.
Prior to the commencement of trial, Strahan filed a notice to assert defense of public authority. Id. at Doc. 183. The government filed its opposition to this defense on October 3, 2006, id. at Doc. 184, and Strahan filed a reply on October 4, 2006. Id. at Doc. 185. On November 6, 2006, the case proceeded to trial. At the close of evidence, Strahan asked the Court to issue a public-authority instruction to the jury, arguing that he believed that he was authorized by Deputy United States Marshal Tom Woods to sell narcotics. The Court refused to instruct the jury noting Strahan's own testimony denying any involvement in drug dealing and the lack of evidence that Woods ever led Strahan to believe he could distribute drugs as part of his role gathering information on the whereabouts of fugitives. On November 13, 2006, the jury returned guilty verdicts on the charges against Strahan. Id. at Docs. 214, 215 and 216. On February 23, 2007, the Court sentenced Strahan to life on the conspiracy count and 360 months on the crack distribution to run concurrently.*fn2
Id. at Docs. 229 & 230. Thereafter, Strahan appealed both his convictions and sentences to the Seventh Circuit Court of Appeals. Id. at Doc. 238. On August 5, 2009, the Seventh Circuit issued its Mandate affirming Strahan's convictions and sentences. Id. at Doc. 299; United States v. Strahan, 565 F.3d 1047 (7th Cir. 2009). Thereafter, the Supreme Court denied certiorari on November 16, 2009. Strahan v. United States, 130 S.Ct. 655 (2009).
On November 22, 2010, Strahan filed his petition. In his petition, Strahan raises four grounds of ineffective assistance of counsel: (1) trial counsel's performance was constitutionally defective because he did not challenge the applicability of Strahan's prior conviction for Solicitation of Unlawful Delivery of a Controlled Substance, in violation of 720 ILCS 5/8-1(a), which he claims does not constitute a felony drug offense as defined under 21 U.S.C. § 802(44); (2) that counsel insisted that petitioner take the witness stand and deny that he had anything to do with the conspiracy; (3) that trial counsel, in opening statement, failed to tell jury about the public-authority defense and instead told the jury that Strahan was a heroin addict and (4) that trial counsel failed to interview witnesses and investigate facts of the case, only spent 1 1/2 hours discussing the case with Strahan and denied Strahan an independent investigator. The government concedes that Strahan's petition is timely under the prisoner mailbox rule. As the petition is 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, ...