The opinion of the court was delivered by: Herndon, Chief Judge:
Before the Court is petitioner Dammaro D. Perkins's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (Doc. 1). Petitioner raises eight grounds for relief in his motion, seven based on ineffective assistance of counsel and one based on jurisdictional grounds. For the reasons that follow, petitioner's motion is denied, and this case is dismissed with prejudice.
On September 27, 2004, petitioner was released from the custody of the Illinois Department of Corrections (IDOC), subject to a signed Parole or Mandatory Supervised Release Agreement. Pursuant to this agreement, petitioner was to comply with various provisions, including, but not limited to, visits and searches of his person and residence by IDOC agents. On subsequent occasions, petitioner tested positive for drug use.
On July 27, 2005, IDOC parole agents and other law enforcement officers conducted an assigned compliance check on petitioner's residence. During the search of one bedroom, the agents recovered crack cocaine from the top of a television, a digital scale under the bed, a plastic bag containing sixteen pieces of crack cocaine, four plastic bags containing marijuana, a box of plastic bags and $1,030 in cash. Petitioner denied knowledge and ownership of the crack cocaine found in his residence.
In a different bedroom, the agents recovered a loaded .38 caliber revolver (with one round missing), and a box of .38 caliber and .25 caliber ammunition. Petitioner was arrested. At the St. Clair County Jail, the authorities recovered crack cocaine from petitioner's pocket. Petitioner claimed that he simply found the crack cocaine near a jail cell and picked it up.
On September 27, 2006, petitioner moved to suppress all evidence recovered from the search of his residence; this Court denied the motion on December 15, 2006. On May 9, 2007, petitioner was charged in a second superseding indictment with: (1) possession with intent to distribute 5 grams or more of cocaine base, in the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); (2) possession with intent to distribute less than fifty kilograms of a mixture or substance containing marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); (3) possession of a firearm by a previously convicted felon in violation of 18 U.S.C. § 922(g)(1); and (4) possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).
Petitioner was convicted by a jury on all four counts. On October 1, 2007, this court entered judgment and sentenced petitioner to 210 months' imprisonment. That same day, petitioner filed his notice of appeal.
On appeal, petitioner raised two issues: 1) that evidence from his residence was unconstitutionally seized, and 2) that the district court's decision to allow evidence of prior bad acts was improper pursuant to Federal Rule of Evidence 404(b). On November 8, 2008, the Seventh Circuit affirmed this court's judgment, and December 8, 2008, the Seventh Circuit issued its mandate. Petitioner filed this § 2255 motion on February 2, 2010, alleging eight grounds, one based on jurisdictional grounds and seven based on ineffective assistance of counsel.
On June 25, 2010, this Court ordered the government to file a response to motion (Doc. 4). On August 13, 2010, the government filed its response (Doc. 7), and on September 21, 2010, petitioner filed his traverse to the government's response (Doc. 10). On August 30, 2012, petitioner filed a motion for a hearing. For the reasons that follow, petitioner's § 2255 motion is denied, and the motion for hearing is denied as moot.
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).
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 (1998); Wainwright v. Sykes, 433 U.S. 72, 87 (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 (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 (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. ...