Leroy L. Scott, Jr., Petitioner-appellant, v. United States of America, Respondent-appellee, 72 F.3d 132 (7th Cir. 1995)

ORDER

Petitioner Leroy Scott brought this action, pursuant to 28 U.S.C. § 2255, challenging his sentence for a drug trafficking crime. The district court denied relief, and Scott appealed. We affirm.

ANALYSIS

Scott was convicted of one count of possessing cocaine base with intent to distribute it and sentenced to 144 months' imprisonment. His conviction and sentence were affirmed on direct appeal. See United States v. Scott, 19 F.3d 1238 (7th Cir. 1994), cert. denied, 115 S. Ct. 163 (1994). Scott raises two issues in his Section 2255 petition: 1) that he was denied effective assistance of counsel because counsel did not raise the issue of a Fed.R.Evid. 615 violation on direct appeal; and 2) that a prior conviction was improperly utilized in calculating his criminal history for sentencing purposes.

The second claim fails for two reasons. First, Scott raised this issue on direct appeal, and this court rejected the argument. See Scott 19 F.3d at 1246. Res judicata does not apply in Section 2255 proceedings, but law of the case does. See Daniels v. United States, 26 F.3d 706, 711-12 (7th Cir. 1994); United States v. Taglia, 922 F.2d 413, 418-19 (7th Cir. 1991), cert. denied, 500 U.S. 927 (1991). Scott has presented no reason why this court should reassess its prior decision. Second, challenges to guidelines calculations, absent extraordinary circumstances, are not cognizable in a Section 2255 petition. See Soto v. United States, 37 F.3d 252, 254 (7th Cir. 1994); Scott v. United States, 997 F.2d 340, 342-43 (7th Cir. 1993). Scott has shown no such extraordinary circumstances.

Scott also claims that his counsel was ineffective because counsel failed to raise the issue of a Fed.R.Evid. 615¹  violation on appeal. To prevail on a claim of ineffective assistance, the prisoner must show that counsel's performance fell below an objective standard of reasonableness ("performance prong") and that the deficient performance so prejudiced the defense as to deprive the prisoner of a fair trial ("prejudice prong"). United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995).

As to the Rule 615 violation itself² , defense counsel objected to the witness, Mr. Fenley, testifying after Fenley's brief appearance in the courtroom while another witness, Ms. Herbst, was testifying. (Record # 28, Hearing Transcript at 130-31.) The magistrate judge denied the objection on the grounds that Fenley's entry into the courtroom was inadvertent and the testimony he overheard was immaterial. (Id. at 131). However, even though defense counsel did not raise this issue on appeal, Scott cannot show prejudice.

"Absent evidence of prejudice, collusion, or willful violation," it is within the district court's discretion to allow a witness to testify after a Fed.R.Evid. 615 violation. United States v. Gammon, 961 F.2d 103, 105 (7th Cir. 1992). The magistrate judge clearly did not abuse his discretion in allowing Fenley to testify. Fenley was in the courtroom only briefly, and his entry into the court room was inadvertent. There was no evidence of any collusion. Further, Rule 615 is designed to prevent witnesses from fashioning their testimony to match the testimony already given and to assist the court in detecting untruthful testimony. Id. Fenley testified in conformity with his prior statements and differently than Herbst as to the significant issue. (See Record # 28, Hearing Transcript at 100, 101, 103, 123, 133, 136). As the Fed.R.Evid. 615 claim is meritless, counsel was not ineffective in electing not to raise it.

AFFIRMED.