The opinion of the court was delivered by: Murphy, District Judge:
On November 18, 2004, Petitioner Compton was charged in four counts of a fourteen-count Indictment. United States v. Farmer et al., No. 04-cr-30139-14, Doc. 1. Count 1 of the Indictment alleged that from 1994 to 2004, Mr. Compton and others conspired to distribute and possess with intent to distribute five kilograms or more of cocaine and cocaine base (crack cocaine), and 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. Id. Count 12 of the Indictment charged Mr. Compton with possessing with intent to distribute approximately 307.5 grams of a mixture or substance containing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Id. Count 13 of the Indictment charged Mr. Compton with possessing with intent to distribute approximately 10.8 grams of cocaine base (crack cocaine) in violation of §§ 841(a)(1) and (b)(1)(B), and Count 14 charged Mr. Compton with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Id.
The case was initially set before United States District Judge William D. Stiehl of the Southern District of Illinois. On January 18, 2007, Judge Stiehl filed an Order of Recusal, reassigning the case to the undersigned judge (Doc. 607). Mr. Compton was tried by a jury on March 6, 2007 (Docs. 674-75). On March 15, the jury returned guilty verdicts on Counts 12, 13 and 14 of the Indictment (Docs. 704-06). Mr. Compton was found not guilty of the conspiracy charge alleged in Count 1 of the Indictment (Doc. 700).
On June 25, 2007, Mr. Compton was sentenced to 360 months imprisonment on Counts 12 and 13, and 120 months on Count 14, the terms to run concurrently (Docs. 766, 769). He filed timely notice of appeal (Doc. 774).
On direct appeal, Mr. Compton alleged the District Court improperly considered other uncharged drug amounts as relevant conduct in calculating his sentence and criminal history score. United States v. Farmer, 543 F.3d 363, 372 (7th Cir. 2008). He argued the uncharged drug amounts, obtained by the Government from Mr. Compton's proffer, were not a part of the same course of conduct as the offenses of conviction. Id. On September 9, 2008, the Seventh Circuit Court of Appeals affirmed Mr. Compton's conviction but vacated his sentence and remanded for resentencing "in light of the improper use of his proffer statements in the PSR, resulting in an incorrect Guidelines range."*fn1 Farmer, 543 F.3d at 378, Doc. 923. Mr. Compton was resentenced on remand to 200 months imprisonment on Counts 12 and 13, and 120 months on Count 14, the sentences to concurrently. (Doc. 946-47). Mr. Compton timely appealed his resentencing, (Doc. 949), but the appeal was dismissed by the Seventh Circuit after Mr. Compton's appellate counsel filed an Anders brief because there were no non-frivolous issues for appeal. United States v. Compton, 347 Fed.Appx. 234, 235 (7th Cir. 2009), Doc. 995. Mr. Compton then filed his § 2255 motion.
Section 2255 motions generally must be filed within a year of the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(f). In the instant case, Mr. Compton was sentenced by the District Court on June 25, 2007 (Doc. 769). He filed timely notice of appeal (Doc. 774). On September 9, 2008, Mr. Compton's sentence was affirmed on appeal, but his sentence was vacated and remanded for resentencing. Farmer, 543 F.3d at 378. Mr. Compton was resentenced by the District Court on March 16, 2009 (Doc. 947). He timely appealed (Doc. 949). On October 2, 2009, Mr. Compton's sentence was affirmed by the Seventh Circuit, and his appeal was dismissed (Doc. 992).
On August 18, 2010, Mr. Compton filed a hand-written motion requesting production of discovery materials in order to file a § 2255 petition. United States v. Josiah Compton, No. 10-cv-632-GPM, Doc. 1. The Court issued a Memorandum and Order on October 5, 2010, directing Mr. Compton to file a proper § 2255 motion within 30 days and directing the clerk of the Court to provide Mr. Compton with the form filing for a Section 2255 Motion (Doc. 3). Mr. Compton then filed a proper § 2255 motion on November 5, 2010 (Doc. 4).*fn2 The Court issued an Order on November 30, 2011 permitting Mr. Compton to amend his original petition, (Doc. 15), and Mr. Compton filed his amended § 2255 petition on January 11, 2012 (Doc. 18). Because the original petition was filed within a year of the date on which Mr. Compton's judgment of conviction became final, the petition is timely.*fn3
Relief under Section 2255 is "an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007), cert. denied, 551 U.S. 1132 (2007). Accordingly, habeas relief under § 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). "To succeed on a § 2255 petition a convicted defendant must show that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Id.
"A § 2255 motion is 'neither a recapitulation of nor a substitute for a direct appeal.'" Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007), quoting McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). Therefore, a § 2255 motion cannot raise: (1) issues that were raised on direct appeal, unless there is a showing of changed circumstances; (2) non-Constitutional issues that could have been raised on direct appeal, but were not; and (3) Constitutional issues that were not raised on direct appeal, "unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal." Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) (overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994)). "A claim that has been procedurally defaulted ordinary may only be raised in a § 2255 proceeding if the defendant demonstrates that he is 'actually innocent,' or that there is 'cause' and actual prejudice." Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008), cert. denied,129 S.Ct. 1637 (2009) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)).
In his petition, Mr. Compton raises nine claims for relief. The Court will address each claim respectively, combining claims 1 and 4 for logical coherence. With the exception of claims 3 (ineffective assistance of trial counsel) and 9 (ineffective assistance of appellate counsel), Mr. Compton failed to raise the claims set forth in his petition on direct appeal. Therefore, Mr. Compton is procedurally barred from raising them in his petition unless he can demonstrate either that he is "actually innocent," or that there is "cause" for and "actual prejudice" resulting from his failure to raise the claims below. Torzala, 545 F.3d at 522. Nowhere in his petition does Mr. Compton allege actual innocence, nor is a claim of actual innocence applicable to the alleged procedural deficiencies challenged by Mr. Compton on Fourth, Fifth and Sixth Amendment grounds. Therefore, for his claims to be considered on the merits, Mr. Compton must establish both cause and prejudice.
The cause and prejudice standard requires not only that a petitioner demonstrate "some objective factor external to the defense" that impeded his efforts to raise the issue earlier, Coleman v. Thompson, 501 U.S. 722, 753 (1992), but also that the error alleged "worked to his actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982). See also Richardson v. Briley, 401 F.3d 794, 801 (7th Cir. 2005) ("[Petitioner] must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions."), quoting Frady, 456 U.S. at 170 (emphasis in original).
"[A] district court need not grant an evidentiary hearing in all § 2255 cases." Almonacid, 476 F.3d at 521, quoting Bruce v. United States, 256 F.3d 592 (7th Cir. 2001). A § 2255 hearing "is not required if 'the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'"Bruce, 256 F.3d at 597, quoting 28 U.S.C. § 2255. "In addition, a hearing is not necessary if the petitioner makes allegations that are 'vague, conclusory, or palpably incredible,' rather than 'detailed and specific.'"Id. , quoting Machibroda v. United States, 368 U.S. 487 (1962). The files and records before this Court conclusively show that Mr. Compton is entitled to no relief. Accordingly, Mr. Compton is not entitled to a hearing.
III. Claims 1 & 4: Defective Search Warrant & Improper Collusion in Obtaining Search Warrant In his first and fourth claims for relief, Mr. Compton alleges that certain procedural
deficiencies in the acquisition of the search warrant executed at his residence invalidated that warrant and tainted the evidence subsequently obtained by law enforcement officers. Mr. Compton argues not only that the search warrant lacked probable cause, but also that federal and state law enforcement authorities improperly colluded with one another in an attempt to circumvent Rule 41 of the Federal Rules of Criminal Procedure.
Mr. Compton filed a Motion to Suppress Evidence in his criminal case on September 22, 2006 (Doc. 580). At the suppression hearing, DEA Special Agent Michael Rehg testified that in 2004, the DEA learned pursuant to a Title III wire tap investigation that Mr. Compton was a customer of a large-scale cocaine dealer and shared this information with local law enforcement, MEGSI (Metropolitan Enforcement Group Southern Illinois), on April 7, 2004. (Doc. 597, pp.4-5). That same day, MEGSI operatives were preparing to obtain a search warrant for Mr. Compton's candy shop, Candy Cravers and More Store. Id. at 5. Special Agent Rehg advised Detective Michael Parkinson of MEGSI that DEA had information there were possibly narcotics at Mr. Compton's store, and that DEA had additionally observed a delivery of narcotics to Mr. Compton's home. Id. Special Agent Rehg advised that he would provide Detective Parkinson with additional probable cause with respect to Mr. Compton's residence. Id. Special Agent Rehg further stated at the time the warrant was prepared and executed DEA did not know if Mr. Compton would be prosecuted federally or by the state, and DEA did not attempt to enlist state officers to execute the warrant on behalf of the federal investigation. Id. at 7.
Detective Parkinson also testified at the suppression hearing and advised that in addition to the information he received from Special Agent Rehg regarding Mr. Compton's drug activity at his residence and candy store, Parkinson had also received information from a known confidential informant who lived in the building above Mr. Compton's candy store. Id. at 12. The informant advised Parkinson he had been with Mr. Compton the previous night at the candy store where they had counted out a large amount of currency.*fn4 Id. While there, the informant smelled cocaine cooking through the air vents and observed large amounts of cocaine and currency. Id at 13.
Detective Parkinson stated that an affidavit for a search warrant was prepared based on the information received from both Special Agent Rehg and the confidential informant, and search warrants were then obtained from the state court in Madison County, Illinois, and executed simultaneously at Mr. Compton's candy store and residence on Robin Street. Id. Like Special Agent Rehg, Detective Parkinson testified that he did not "pre-plan"with federal authorities where the case would eventually be presented for prosecution. Id. at 16.
In his Order denying Mr. Compton's Motion to Suppress Evidence, Judge Stiehl observed that the warrant affidavit also included several prior incidents involving Mr. Compton supporting probable cause. One incident occurred on September 9, 2003, when Illinois State police went to Defendant's residence at 1302 Robin Street after receiving information from a confidential informant that the residence was a stash house for Mr. Compton. (Doc. 606, p.5). While at the premises, agents observed a bag sitting on the lawn containing approximately one ounce of marijuana and four plastic bags with approximately one ounce of powder cocaine each. Id. Agents also observed mail in plain view addressed to Josiah Compton. Id. The affidavit additionally included interviews and proffers conducted beginning in 2000 with various individuals who identified Mr. Compton as their source of either cocaine, heroin, and/or marijuana. Id. at 6. The final incident set forth in the affidavit detailed a traffic stop in Venice, Illinois on July 17, 2002, where the driver evaded arrest and the car was later found abandoned with a gym bag inside containing a wallet with identification for "Josiah Compton." Id. The bag also contained 13 grams of cocaine and 24 bags of marijuana weighing approximately 60 grams. Id. Though Mr. Compton alleged to have reported the car stolen prior to the incident, a confidential informant advised MEGSI approximately two weeks later that Mr. Compton had admitted to fleeing the police. Id.
B. Claim 1: Defective Search Warrant
Mr. Compton first alleges the District Court at trial should have suppressed the evidence obtained pursuant to the search warrant because the warrant affidavit lacked a showing of probable cause, and the affiant misled the issuing Magistrate regarding the existence of probable cause.(Doc. 18-1, 4-11). Mr. Compton is procedurally barred from raising this claim absent a showing of cause and prejudice. Torzala, 545 F.3d at 522. Mr. Compton does not set forth any cause to justify his failure to raise the issue on direct appeal. Even assuming Mr. Compton could demonstrate cause for his default, he is unable to establish the warrant affidavit he now challenges lacked a showing of probable cause, thereby resulting in prejudice to Mr. Compton.
In determining the existence of probable cause, the issuing magistrate must make only "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983); see also United States v. Dismuke, 593 F.3d 582, 586 (7th Cir. 2010), cert. denied 131 S.Ct. 3018 (2011) (magistrate's finding of probable cause will be upheld if there is a substantial basis for concluding search will uncover evidence of wrongdoing). Consequently, "the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)) (alterations in original); see also United States v. McIntire, 516 F.3d 576, 577 (7th Cir. 2008), cert. denied 555 U.S. 839 (2008) ("[W]e ...