The opinion of the court was delivered by: Herndon, Chief Judge:
Now before this Court is petitioner James E. Rollins, Sr.'s, motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. Â§ 2255 (Doc. 1). The government opposes petitioner's motion (Doc. 12). For the following reasons, petitioner's motion for relief pursuant to 28 U.S.C. Â§ 2255 (Doc. 1) is DENIED.*fn1
On September 8, 2005, a federal grand jury returned a two-count indictment against petitioner (05-cr-30133, Doc. 1). On February 13, 2007, a jury found petitioner guilty of both offenses: one count of conspiracy to knowingly and intentionally manufacture, distribute, and possess with intent to distribute cocaine and cocaine base; and one count of distribution of cocaine base, in violation of 21 U.S.C. Â§Â§ 846 and 841(a)(1) and (b)(1)(B) (05-cr-30133, Docs. 409, 410, 412, and 413). Thus, on July 5, 2007, the Court sentenced petitioner to 97 months on each count, to run concurrently, plus four years of supervised release. Further, petitioner was ordered to pay a total assessment of $200.00 and a fine of $1,000.00 (05-cr-30133, Doc. 551).
On direct appeal, petitioner argued that the Court: (1) abused its discretion in allowing the case agent (DEA Agent McGarry) to testify as to his impressions of electronically intercepted telephone conversations; (2) erred in denying his motion for a judgment of acquittal based on insufficient evidence; and (3) erred in increasing his offense level for possession of a dangerous weapon under U.S.S.G. Â§ 2D1.1(b)(1). The Seventh Circuit affirmed petitioner's conviction on September 15, 2008, United States v. Rollins, 544 F.3d 820 (7th Cir. 2008), and the Supreme Court denied petitioner's application for a writ of certiorari on May 24, 2010, Rollins v. United States, 130 S. Ct. 3343 (2010).
Instantly, petitioner raises nine grounds which he alleges warrant the relief he seeks. Specifically, he argues that: (1) trial counsel denied him his right to testify in his own defense; (2) the prosecution improperly failed to provide petitioner with grand jury transcripts needed for impeachment of an adverse witness (Agent McGarry); (3) Agent McGarry presented false testimony to the grand jury; (4) trial counsel denied petitioner his right to present a defense when he failed to subject the government's case to meaningful adversarial testing or present a case in chief; (5) the case against petitioner was not properly brought because no indictment was presented in open court; (6) trial counsel was ineffective for failing to move to suppress the gun found in petitioner's residence or objecting to its introduction as evidence; (7) the second $100.00 assessment imposed on petitioner ($200.00 total for two counts) violated the Double Jeopardy Clause; (8) the increased sentence due to possession of a firearm was based on false and unreliable information; and (9) trial counsel was ineffective for failing to argue at sentencing that petitioner did not possess or use the gun during the time of the conspiracy. The Court shall address petitioner's claims in turn. However, as petitioner's contentions raise arguments that are procedurally defaulted, lacking in merit, or raised and rejected on direct appeal, petitioner's motion is DENIED.
Beginning in August of 2004, law enforcement agencies in southern Illinois began an investigation of a crack and powder cocaine trafficking conspiracy in Alton, Illinois. Agents eventually focused their attentions on Richard Pittman, a powder and crack cocaine distributor who later testified for the government at trial. Pittman's trial testimony related that he attended a family reunion in Alton during the summer of 2002. Petitioner's son, James Rollins, Jr., was also in attendance. Shortly thereafter, Rollins, Jr., and Pittman began distributing cocaine together. Rollins, Jr., would deliver one-half and one-quarter kilogram packages once a month to Pittman via John Frost, an employee of Rollins, Jr.'s, trucking company.
In the summer of 2003, petitioner began making the cocaine deliveries to Pittman in the Alton area. Pittman testified that on March 20, 2005, he went to petitioner's home in St. Louis, Missouri, to purchase one-fourth kilogram of powder cocaine for $5,400.00. The two men had phone conversations which law enforcement intercepted. Pittman identified his and petitioner's voices on the calls. While at petitioner's home, Pittman saw 18 ounces of powder cocaine and a set of digital scales. Pittman's common law wife, Tamiesha Williams, also agreed to testify for the government. At trial, she stated that petitioner delivered powder cocaine to Pittman at her house every two weeks or once a month from the end of 2003-2005.
Agent McGarry led the investigation. He listened to and intercepted phone calls every day from ten different numbers, including petitioner's, from February to July of 2005. Thus, based on the familiarity such monitoring developed, he testified as to his impressions of various intercepted phone calls involving petitioner and his co-defendants. Specifically, of the over 100 recorded telephone conversations played at trial, Agent McGarry testified that over 43 were alleged drug-related calls between Pittman and petitioner, and 30 were drug-related calls between petitioner and Rollins, Jr.
Agent McGarry further testified that on September 20, 2005, law enforcement executed a search warrant at petitioner's home and petitioner was arrested. During the course of the search, law enforcement found various drug paraphernalia, including cutting agents, a mixing kit, and sifter. They additionally found a firearm with ammunition, a digital scale, latex gloves, plastic baggies, and plastic mixing bowls.
IV. 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. Â§ 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 Section 2255 is not a substitute for a direct appeal. Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007).
Thus, unless a movant demonstrates changed circumstances in fact or law, he may not raise issues already decided on direct appeal, Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995), as "the 'law of the case' doctrine dictates that 'once [the appellate] court has decided the merits of a ground of appeal, that decision establishes the law of the case and is binding on a [court] asked to decide the same issue in a later phase of the same case, unless there is some good reason for reexamining it.'" Fuller v. United States, 398 F.3d 644, 648 (7th Cir. 2005) (quoting United States v. Mazak, 789 F.2d 580, 581 (7th Cir. 1986)).
Further, a petitioner 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 (1998); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000). Moreover, a Section 2255 motion cannot pursue non-constitutional issues that were not raised 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 Section 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 (1979).
Petitioner's various grounds for relief include numerous allegations of ineffective assistance of counsel. Importantly, the Supreme Court has held that the usual procedural default rule does not generally apply to such claims as, "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under Â§ 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003).
To succeed in an ineffective assistance of counsel claim, a petitioner must demonstrate (1) his attorney's performance "fell below an objective standard of reasonableness," and (2) "but for counsel's unprofessional errors the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). To satisfy the first prong, "the Court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. To satisfy the second prong, petitioner must demonstrate to a "reasonable probability" that without the unprofessional errors, "the result of the proceeding would have been different." Id. at 696. A district court's analysis begins with a "strong presumption that the defendant's attorney rendered adequate representation of his client." United States v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000). Thus, petitioner must overcome a heavy burden to prove that his attorney was constitutionally deficient. Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006).
i. Ineffective Assistance of Counsel: Denial of Right to Testify in Own Defense
Petitioner first alleges ineffective assistance of counsel, as his trial counsel disregarded petitioner's expressed desire to testify. Petitioner's allegations amount to this: petitioner expressed to his counsel that he desired to testify; however, his counsel chose not to call him to the stand. Admittedly, petitioner repeatedly states his counsel never advised him he could not testify. He additionally relates that he questioned counsel at the close of his case as to why he was not called to the stand. Petitioner alleges his counsel initially gave him no explanation, but eventually sent him a letter in which counsel states he made the decision not to ...