The opinion of the court was delivered by: Reagan, District Judge:
Now before the Court is Corey Louis Hines's petition to vacate, set aside or correct sentence under 28 U.S.C. § 2255. Analysis of the petition begins with an overview of the procedural history of the underlying criminal case.
On March 5, 2008, Hines was charged in an Indictment with one count of possession of a prohibited object (marijuana) in a federal prison. (United States v. Hines, Case No. 08-cr-30040-MJR) (Doc. 1) ("Crim. Doc.). On April 23, 2008, Hines was charged in a Superseding Indictment with possession of a prohibited object (marijuana) in a federal prison (Count 1), possession of marijuana with intent to distribute (Count 2) and conspiracy to distribute and possess with intent to distribute marijuana and heroin (Count 3) (Crim. Doc. 22).
After numerous, lengthy delays occasioned by Hines's recalcitrant behavior in refusing to cooperate with Magistrate Judge Philip M. Frazier and Magistrate Judge Clifford J. Proud, with the examining psychologist during a Court- ordered competency examination, with counsel and with the undersigned District Judge, as well as numerous interlocutory appeals, a jury trial commenced. Hines refused to come to the courtroom, even though the Court warned him that he would forfeit his right to represent himself if he refused.
Hines was brought, unwilling, to the courtroom shortly before jury selection and announced that he wanted nothing to do with the trial. He was represented at trial by Assistant Federal Public Defender Dan Cronin who waived Hines's presence at jury selection by stating that the Court had satisfied Rule 43(a) of the Federal Rules of Criminal Procedure and the Constitution. On October 20, 2009, the jury found Hines guilty on Counts 1 and 2, but not guilty on Count 3 of the Superseding Indictment. On April 9, 2010, the undersigned Judge sentenced Hines to a term of 60 months' imprisonment on Count 1 and 84 months on Count 2, to be served consecutively to each other and consecutively to the undischarged term of imprisonment imposed in the United States District Court for the Eastern District of Missouri. Hines was placed on supervised release for a term of 3 years on Count 1 and 4 years on Count 2, to run concurrently, and a special assessment of $100 on each of Counts 1 and 2, for a total of $200.00.
Proceeding pro se, Hines appealed his conviction and sentence to the United States Court of Appeals for the Seventh Circuit. United States v. Hines, 407 Fed.Appx. 975 (7th Cir. 2011). He raised the following challenges on appeal: (1) use of confession; (2) defects in instituting the prosecution; (3) denial of a detention hearing at his first appearance; (4) denial of a Faretta colloquy; (5) denial of a fair hearing on pretrial motions; (6 and 7) pre-accusation and pretrial delay; (8) denial of a hearing pursuant to 18 U.S.C. § 4247(d); (9) deprivation of pro se status; (10) impaneling a jury in his absence; (11) the Court's refusal to disqualify himself; (12) the Court's striking objections to the presentence report; (13) lack of subject-matter jurisdiction; (14) lack of personal jurisdiction; and (15) defective Indictment (Doc. 26-1, "Brief of Defendant-Appellant").
On February 10, 2011, the Seventh Circuit denied all of Hines's assertions of error and affirmed his convictions and sentence in all respects. The Court denied rehearing on March 14, 2011. On April 15, 2011, Hines filed a Petition for Writ of Certiorari with the United States Supreme Court. On October 3, 2011, the Supreme Court denied review. Hines v. United States, 132 S.Ct. 352 (2011).
On December 5, 2011, Hines, proceeding pro se, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). On January 30, 2012, Hines filed a motion requesting disposition of preliminary review of his petition (Doc. 2). On March 15, 2012, Hines filed an interlocutory appeal "from the final judgment denying § 2255 and motion for disposition of preliminary review of § 2255" (Doc. 3). On July 30, 2012, the Seventh Circuit issued its Mandate, dismissing Hines's appeal for lack of jurisdiction and denying his motion for rehearing (Doc. 18).
On July 9, 2012, while the petition for rehearing was pending, Hines filed a motion seeking the recusal or disqualification of the undersigned Judge (Doc. 16). On August 8, 2012, the Court completed its preliminary review and directed the Government to respond to the petition by September 18, 2012 (Doc. 21). The Court also directed the Government to respond to the motion for recusal or disqualification by August 28. Hines subsequently supplemented his petition (Doc. 20) and filed two additional appeals (Docs. 29, 30). The appeals were again denied for lack of jurisdiction (Doc. 44). On February 26, 2013, the Court denied Hines's motion to stay adjudication pending review on certiorari and his motion for recusal or disqualification of the undersigned Judge (Docs. 46, 48, 49). On March 1, 2013, the Court denied Hines's motion to strike the Government's response to his petition (Docs. 37, 50). For the reasons stated below, the Court now dismisses Hines's § 2255 petition.
28 U.S.C. § 2255 authorizes a federal prisoner to ask the court which sentenced him to vacate, set aside, or correct his sentence, if "the sentence was imposed in violation of the Constitution or laws of the United States, or ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law.."
Relief under § 2255 is limited. Unlike a direct appeal, in which a defendant may complain of nearly any error, § 2255 proceedings may be used only to correct errors that vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude. See, e.g., Corcoran v. Sullivan, 112 F.3d 836, 837 (7th Cir. 1997)(§ 2255 relief is available only to correct "fundamental errors in the criminal process").As the Seventh Circuit has declared, § 2255 relief "is appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (citing Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). Accord Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996)("... relief under 28 U.S.C. § 2255 is reserved for extraordinary situations")).
Section 2255 cannot be used as a substitute for a direct appeal or to re-litigate issues already raised on direct appeal. Coleman v. United States, 318 F.3d 754, 760 (7th Cir.), cert. denied, 540 U.S. 926 (2003). AccordTheodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989)(§ 2255 petition "will not be allowed to do service for an appeal.").
A. Timeliness of petition
Under the Antiterrorism and Effective Death Penalty Act of 1996, a § 2255 petition must be filed within one year of the date on which the judgment of conviction becomes final. Robinson v. United States, 416 F.3d 645, 647 (7th Cir. 2005) (citing 28 U.S.C. § 2255, ¶ 6(1)). While the statute does not define finality, "the Supreme Court has held that in the context of post-conviction relief, finality attaches when the Supreme Court 'affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.'" Id. (citation omitted).
In the current proceeding, the Supreme Court denied review on October 3, 2011. Hines, 132 S.Ct. 352. Hines filed his petition approximately two months later on December 5, 2011. Accordingly, the petition is timely filed.
B. Procedurally Barred Claims "[A] section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal." Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds, Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994) (citations omitted). "As a result, there are three types of issues that a section 2255 motion can not raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; 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. Id. (citing United States v. Rodriguez, 792 F.Supp. 1113 (N.D.Ill.1992); see Norris v. United States, 687 F.2d 899, 900 and 903-04 (7th Cir. 1982) (On appeal from the denial of a section 2255 motion, the court refused to consider issues previously decided on direct appeal from the conviction and non-constitutional issues that could have been but were not raised on direct appeal. The court would consider constitutional issues that could have been raised on direct appeal only if petitioner showed cause and prejudice) (additional citations omitted) (emphasis in original).
In the instant petition, Hines asserts several claims that are exactly the same as those raised in his direct appeal of his conviction: (1) defect in instituting the prosecution; (2) speedy trial violation ("preaccusation and pretrial delay"); and (3) abuse of discretion (failure to hold a timely Faretta colloquy, failure to grant a fair hearing, failure to give a fair competency hearing, denial of right to proceed pro se, commencing trial (impaneling jury) in his absence and the undersigned Judge's failure to recuse himself). Hines has not alleged any "changed circumstances" that would merit revisiting issues already decided on direct appeal. He cannot relitigate these claims. In summary, Hines is procedurally barred from challenging these determinations again in a § 2255 petition, and the claims merit no further consideration.
Next, Hines contends that the Court abused its discretion by not ordering the Government to comply with a discovery rule that required it to produce evidence that would have proven his defense of "lack of in personam jurisdiction" (Doc. 1-1, p. 20). This claim is also procedurally barred, not because Hines raised it on direct appeal but because he did not. Assuming that there is a potential constitutional violation, i.e., that the Government violated its duty to disclose exculpatory evidence, Hines has not shown the necessary cause and prejudice that he must show in order to raise the issue in his § 2255petition. See Miller v. United States, 183 Fed.Appx. 571, 579 (7th Cir. 2006).
Even if Hines's claim were not procedurally barred, it is meritless. First, the Court did order compliance with discovery rules in this case (Crim. Doc. 7). Second, the Court is not required to compel compliance with Brady v. Maryland, 373 U.S. 97 (1963), because Brady is a "self-executing constitutional rule that due process requires disclosure by the prosecution of evidence favorable to the accused that is material to guilt or punishment." United States v. Garrett, 238 F.3d 293, 302 (5th Cir. 2000). Third, the evidence that Hines contends was "suppressed," relates to his frivolous claim that the Court lacks personal jurisdiction over him because he is not a citizen.
More specifically, Hines sought production of such things as his original birth certificate; Social Security record; applications for a State identification card, driver's license and food stamps; and copies of records which he claimed should be provided at no charge by the Clerk of Court for this District (Crim. Docs. 100, 102). The Government responded that it was not in possession of any of the documents sought, which were, in any case, "irrelevant to any material issue in this case as there is no such valid 'personal jurisdiction' defense in this case" (Crim. Docs. 117, 119). Hines's motion for production of these documents was denied as moot on September 11, 2009, after a hearing in open court -- which Hines refused to attend -- when the Court appointed counsel to represent him (Crim. Doc. 128).
Hines was not prejudiced by the Court's refusal to order the Government to produce the documents at issue. He was an inmate in a federal prison within the United States and was charged with violating federal statutes by bringing drugs into that facility. This Court's jurisdiction over Hines -- regardless of whether he was a citizen of this country -- was properly exercised. His continued pursuit of this frivolous claim is further evidence of the obstructive behavior that marked this action. Moreover, Hines was, from the day of the hearing (September 11, 2009) forward, at all times represented by counsel who could request production of any relevant documents. Hines's claim that the Court should have ordered the Government to produce the documents at issue is both procedurally barred and meritless.
C. Ineffective Assistance of Counsel Claims
Hines alleges eight reasons why his appointed counsel was ineffective:
(1) failure to raise the defect in instituting the prosecution; (2) failure to raise the Fourth Amendment violation; (3) failure to attack the defective indictment; (4) refusal to advocate Hines's case; (5) refusal to withdraw; (6) failure to consult with Hines; (7) failure to bring to bear such skill and knowledge as would have rendered the trial a reliable adversarial testing process; and (8) failure to defend Hines at sentencing. As will be explained below, the claims are both procedurally barred and meritless.
First, an evidentiary hearing on Hines's ineffective assistance of counsel claims is not warranted. These claims often require an evidentiary hearing, "because they frequently allege facts that the record does not fully disclose." Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008). But the issues raised here can be resolved on the existing record, which conclusively demonstrates that Hines is entitled to no relief. See Rule 8(a) of RULES GOVERNING SECTION 2255PROCEEDINGS; Almonacid v. United States, 476 F.3d 518, 521 (7th Cir.), cert. denied, 551 U.S. 1132 (2007); Gallo-Vasquez v. United States, 402 F.3d 793, 797 (7th Cir. 2005); Galbraith v. United States, 313 F.3d 1001, 1010 (7th Cir. 2002). Stated another way, Hines has not alleged facts that, if proven, would entitle him to relief. See Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
Second, under the Seventh Circuit's analysis in McCleese v. United States, 75 F.3d 1174 (7th Cir. 1996), the claims are procedurally barred. There the Court observed that most ineffective assistance claims are properly raised for the first time in a § 2255 petition. McCleese, 75 F.3d at 1178 (collecting cases). The Court explained that this procedure is justified on two grounds: (1) "in order to be successful, such claims generally require that the record be supplemented with extrinsic evidence that illuminates the attorney's errors"; and (2) "where trial counsel was also appellate counsel . he can hardly be expected to challenge on appeal his own ineffectiveness at trial." Id. (citations omitted) (internal quotation marks omitted). The result of this rule is that "[w]here a defendant offers no extrinsic evidence to support his claim of ineffective assistance of counsel and he was represented by different counsel on appeal, that defendant must bring that claim on direct appeal or face procedural default for failing to do so." Id. (citations omitted).
Here, Hines proceeded pro se on appeal, so he cannot escape this procedural bar on the basis of the second ground, that trial counsel was also appellate counsel. Consequently, unless Hines offers extrinsic evidence to support his claims of ineffective representation, the claims are procedurally barred.
Upon careful review of Hines's petition and supplement, the Court finds that Hines has offered no objective extrinsic evidence to support his claims. The only evidence offered that is outside the criminal records is a self-serving affidavit in which Hines merely sets forth the grounds asserted in his petition and states that his counsel was deficient. This is not objective evidence that would support a prejudice argument. Because Hines offers no material extrinsic evidence in support of his ineffective assistance claims and because he was represented by counsel at trial but proceeded pro se on appeal, these claims are not of the type properly raised for the first time in a § 2255 motion. See McCleese, 75 F.3d at 1178. As such, they are procedurally barred. Nonetheless, the Court will review the claims individually to determine whether they overcome a procedural default by meeting the cause and prejudice test.
The Sixth Amendment to the United States Constitution accords criminal defendants the right to effective assistance of counsel. Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009), cert. denied, 130 S.Ct. 1925 (March 22, 2010). To prevail on a claim of ineffective assistance, a defendant must prove two things (a) that his attorney's performance was objectively unreasonable and (b) that he suffered prejudiced as a result of this constitutionally deficient performance. Wyatt, 574 F.3d at 457-58; United States v. Peleti, 576 F.3d 377, 383 (7th Cir. 2009); Strickland v. Washington, 466 U.S. 668, 687 (1984).
This first requirement of this dual test is referred to as "the performance prong" and the second as the "prejudice prong."As to the performance prong, a § 2255 petitioner must overcome a "strong presumption that [his] counsel's conduct falls within the wide range of reasonable professional assistance." Wyatt, 574 F.3d at 458 (quoting Strickland, 466 U.S. at 687-88). He must establish the specific acts or omissions he claims constitute ineffective assistance, and the Court then assesses whether those acts/omissions are outside the scope of reasonable legal assistance. Id. See also United States v. Acox, 595 F.3d 729, 734 (7th Cir. 2010) (citing Williams v. Lemmon, 557 ...