The opinion of the court was delivered by: Herndon, Chief Judge:
I. Introduction and Background
Now before the Court is L.A. Bailey's 28 U.S.C. § 2255 petition to vacate, set aside or correct sentence (Doc. 1). The government filed an opposition to the petition (Doc. 9) and Bailey filed a reply (Doc. 10). Thereafter, Bailey filed a supplement to the 2255 petition (Doc. 11). Based on the record and the applicable law, the Court denies and dismisses with prejudice the petition.
On January 12, 2010, the grand jury charged Bailey with two counts of distribution of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). See United States v. Bailey, 10-3000-DRH; Doc. 1. On February 19, 2010, the Court appointed Assistant Federal Public Defender Daniel Cronin to represent Bailey. Id. at Doc. 11. That same day, the Court arraigned Bailey and Bailey pled not guilty to the charges. Id. at Doc. 9. On April 19, 2010, Federal Public Defender Phillip J. Kavanaugh entered his appearance as co-counsel for Bailey. Id. at Doc. 18. On May 17, 2010, the government filed its information to establish prior conviction pursuant to 18 U.S.C. § 851. Id. at Doc. 22. The prior convictions included in the enhancement were: (1) unlawful delivery of a controlled substance, in Champaign County, Illinois Circuit Court, in Case Number 2004-CF-2180, to which defendant was sentenced to five years imprisonment and (2) unlawful possession of a controlled substance, in Champaign County, Illinois Circuit Court, in Case Number 2000-CF-1610, to which defendant was sentenced to five years and 6 months imprisonment. The notice stated: "said offenses are felony drug offenses as defined in Title 21 U.S.C. 802(44)." In an open plea, Bailey pled guilty to the charges in the indictment on May 28, 2010. Id. at Doc. 25. On October 15, 2010, the Court sentenced Bailey to 216 months on Counts 1 and 2 of the indictment.*fn1 Id. at Docs. 36 & 39. Thereafter, Bailey appealed his judgment to the Seventh Circuit Court of Appeals. Id. at Doc. 41. Bailey's lawyer filed a motion to withdraw and an Anders brief in the Seventh Circuit. On April 22, 2011, the Seventh Circuit issued its Mandate granting counsel's motion to withdraw and dismissing Bailey's appeal. Id. at Doc. 52.
On September 19, 2011, Bailey filed his petition (Doc. 1). In his petition, Bailey raises four grounds for ineffective assistance of counsel: (1) counsels' performance was constitutionally defective because he failed to argue and to preserve on appeal that "UNLAWFULL DELIVERY" of a controlled substance clearly falls outside the guideline definition of U.S.S.G. § 4B1.2 controlled substances; (2) that counsel failed to properly investigate his mental issues as his medical condition could have been a factor; (3) counsel failed to object to the PreSentence Investigation Report, at sentencing and on appeal that his state conviction for unlawful delivery of a controlled substance in violation of 720 ILCS 570/407(b)(2) is not a serious drug offense that falls outside U.S.S.G. § 4B.1.2; and (4) counsel failed to negotiate a plea agreement regarding a concurrent sentence for Bailey's 18 month state sentence and thus he was not given the opportunity to utilize U.S.S.G. § 5G1.3.
After the 2255 petition became ripe, Bailey, in his criminal case, filed a motion for modification of an imposed term of imprisonment pursuant to crack cocaine offenses 18 U.S.C. § 3582. United States v. Bailey, 10-30005-DRH; Doc. 54. In this motion, Bailey contends that he is entitled to a sentence reduction in light of the Fair Sentencing Act and United States v. Dorsey, 132 S.Ct. 2321 (2012). The Court denied for lack of jurisdiction that motion noting that the proper vehicle to obtain such relief is through a section 2255 petition and notified defendant of the Court's intention to re-characterize the motion as one pursuant to 2255. Id. at Doc. 55. To assist Bailey, the Court appointed attorney Eugene Howard to represent Bailey solely for the Fair Sentencing Act and Dorsey issue and informed Bailey that he should inform the Court if he would like the Court to consider his motion as a supplement to his pending section 2255 petition.
Thereafter, Bailey, pro se, re-filed the motion for modification of an imposed term of imprisonment pursuant to 18 U.S.C. § 3582 and indicated that he wished the motion to be a supplement to his § 2255 petition. Id. at Doc. 60. Subsequently, Mr. Howard filed a motion to withdraw stating "counsel has determined that Defendant has no meritorious basis for entitlement to a sentence reduction under the Fair Sentencing Act, United States Dorsey, or 18 U.S.C. § 3582(c) and the retroactive amendments to the crack cocaine sentencing guidelines." Id. at Doc. 61. Based on the reasons stated in Mr. Howard's motion, the Court allowed Mr. Howard to withdraw, allowed Bailey time to file a response and allowed the government time to file a reply. Id. at Doc. 62. Bailey did file a response, Id. at Doc. 63, and the government filed its reply, Id. at Doc. 64.
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, Bailey's allegations are unsupported by the record; subsequently, the Court sees no reason to hold an evidentiary hearing on the issues he raises.
The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). A party claiming ineffective assistance of counsel bears the burden of showing (1) that his trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000). Either Strickland prong may be analyzed first; if that prong is not met, it will prove fatal to plaintiff's claim. Strickland, 466 U.S. at 697; Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993).
Regarding the first prong of the Strickland test, counsel's performance must be evaluated keeping in mind that an attorney's trial strategies are a matter of professional judgment and often turn on facts not contained in the trial record. Strickland, 466 U.S. at 689. The petitioner's burden is heavy because the Strickland test is "highly deferential to counsel, presuming reasonable judgment and declining to second guess strategic choices." United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (quotations omitted). In other words, the Court must not become a "Monday morning quarterback." Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990). With regards to the second prong of Strickland, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Fountain, 211 F.3d at 434; Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir. 2006). "A reasonable probability is defined as one that is sufficient to undermine confidence in an outcome." Adams, 453 F.3d at 435 (citing Strickland, 466 U.S. at 694).
In the instant case, the Court cannot say that counsels' performances significantly prejudiced Bailey or that their representations fell below an objective standard of reasonableness.
The Court addresses Bailey's first and third argument together as the arguments are related if not essentially the same. He argues that counsel were ineffective for failing to argue, object and preserve for appeal that his prior state felony conviction for unlawful delivery of a controlled substance is not a predicate offense for career offender status, that it was not a serious drug offense and that the state charge was never proven by the State of Illinois. He maintains counsel failed to familiarize himself with Firth Circuit and Eleventh Circuit cases. Based on the case law in the Seventh Circuit and the record in this case, the Court finds that these arguments clearly are meritless.
Section 4B1.1(a) of the guidelines provides:
A defendant is a career offender if (1) the defendant was at least 18 years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
Further, 4B1.2(b) defines controlled substance as:
The term "controlled substance offense" means an offense under federal or state law, punishable imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export distribute, or dispense.
The Seventh Circuit has found that Illinois convictions for unlawful delivery of a controlled substance qualifies as a controlled substance under 4B1.2(b). See United States v. Mason, 355 Fed. Appx. 65, 2009 WL 4730390 (7th Cir. 2009) ("Prior convictions . for the . delivery of a controlled substance, a Class 2 felony under 720 ILL. COMP. STAT. 570/401, and the manufacture or delivery of marijuana, a Class 3 felony under 720 ILL. COMP. STAT. 550/5, and both offenses . punishable by more than a year in prison. Thus, the convictions qualify as controlled substance offenses for career-offender purposes. See U.S.S.G. § 4B1.2(b); United States v. Kelly, 519 F.3d 355, 365 (7th Cir. 2008))."
Bailey contends that the Illinois statute, 720 ILCS 570/407(b)(2), that he was indicted under and pled guilty to does not constitute a controlled substance within the meaning of 4B1.2(b). He merely contends that since 4B1.2(b) does not reference "unlawful delivery" it is not included in the definition of controlled substances. Bailey is wrong. Bailey was charged by indictment for unlawful delivery of a controlled substance in Champaign County, Illinois in Case No. 04-CF-2180 in violation of 720 ILCS 570/407(b)(2).*fn2 He pled guilty to the charge, which is class 1 felony under Illinois law. The circuit court sentenced Bailey to five years imprisonment on this charge. ...