CHARLES R. SIMPSON, III, Senior District Judge.
This matter is before the Court on Defendant Tyrone Montgomery's ("Petitioner") pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (DN 76). For the reasons set forth below, the Court will deny the motion.
On September 1, 2011, Petitioner filed a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (DN 76), which he thereafter supplemented with additional filings (DNS 97, 100, 101). As the basis for his motion, Petitioner alleges that his conviction resulted from violations of: 1) his Fifth Amendment right to due process; and 2) his Sixth Amendment right to effective assistance of counsel. While Petitioner's due process claim is based solely on his contention that he was denied his right to a speedy trial under the Speedy Trial Act, Petitioner's ineffective assistance of counsel claim is based on several alleged errors on the part of his appointed counsel, including: 1) counsel's failure to argue for reversal of Sixth Circuit precedent holding that plea negotiations constitute "other proceedings" under the Speedy Trial Act; 2) counsel's failure to persuade the court that plea negotiations do not constitute excludable time under the Speedy Trial Act; 3) counsel's failure to appear in person at a telephonic conference concerning Petitioner's motion to suppress; 4) counsel's failure to object to the government's request for extension of time to file responses; and 5) counsel's failure to inform Petitioner of a plea offer tendered by the government whereby the government would not file an information to establish previous convictions under 21 U.S.C. § 851 in exchange for Petitioner's agreement to enter an open plea of guilty.
On March 28, 2012, the United States filed its response (DN 89), to which Petitioner subsequently replied (DN 95). In accordance with local practice, the case was referred to United States Magistrate Judge James D. Moyer for the preparation of a Report & Recommendation (the "Report"). In the Report, Judge Moyer recommends that Petitioner's motion should be granted on the ground that Petitioner's counsel provided ineffective assistance of counsel by failing to inform him of the plea offer tendered by the government. (DN 105). With respect to Petitioner's due process claim, the Report concludes that, because it was previously litigated on direct appeal as part of Petitioner's speedy trial claim, it cannot serve as a basis for relief under 28 U.S.C. § 2255. With respect to Petitioner's remaining claims of ineffective assistance of counsel, the Report concludes that the alleged errors on the part of Petitioner's counsel fell within counsel's discretion to make strategic choices for his client and therefore could not properly serve as the basis for a claim of ineffective assistance of counsel.
Both Petitioner and the United States have filed objections to the Report. Petitioner objects that the Report incorrectly concluded that his due process claim should be denied because it had been previously litigated on direct appeal. According to Petitioner, his due process claim is not merely an avenue for relitigation of his speedy trial claim, but is instead an attempt "to set out a different approach to a claim... that arose out of the same conduct." (Petitioner's Objections, DN 106, at 2). For its part, the United States objects that the Report incorrectly concluded that Petitioner received ineffective assistance of counsel during plea negotiations because: 1) there was never any definite offer to enter into a binding plea agreement, meaning that counsel's failure to communicate the offer did not constitute deficient performance; and 2) Petitioner did not suffer prejudice as a result of his counsel's allegedly ineffective representation.
For the reasons set forth below, the Court concludes that: 1) Petitioner's due process claim was litigated on direct appeal and therefore cannot serve as the basis for relief under 28 U.S.C. § 2255; and 2) Petitioner did not receive ineffective assistance of counsel because Petitioner has failed to demonstrate that he suffered prejudice from his counsel's failure to inform him of the government's plea offer. Therefore, the court will deny Petitioner's 28 U.S.C. § 2255 motion.
To obtain habeas relief under 28 U.S.C. § 2255, the movant must demonstrate that his "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. § 2255(a). For petitions based on constitutional error, the movant "must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). Importantly, however, "a § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances, " such as an intervening change in the law. Dupont v. United States, 76 F.3d 108, 110 (6th Cir. 1996).
When a § 2255 motion has been referred to a magistrate judge for proposed findings and recommendations under 28 U.S.C. § 636(b)(1)(B), "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made" and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
i. Due Process
Petitioner objects to the Report's conclusion that his due process claim was previously litigated on direct appeal and therefore cannot serve as the basis for habeas relief under 28 U.S.C. § 2255. After reviewing the record, the Court agrees with the Report that Petitioner's due process claim was previously litigated on direct appeal and and therefore cannot serve as the basis for habeas relief under 28 U.S.C. § 2255.
In his motion, Petitioner argues that his Fifth Amendment right to due process was violated to the extent that "the district court failed to tr[y] his criminal case within the time frame required under [the Speedy Trial Act]." (Amended Motion to Vacate, DN 97, at 13). Although Petitioner acknowledges that "the issue concerning the Speedy Trial Act was raised on direct appeal, " he argues that, because the Sixth Circuit refused to consider his argument that certain delays should be considered non-excludable time,  he should not be precluded from asserting a due process claim based on this same argument. However, given that the Sixth Circuit considered Petitioner's remaining arguments in support of his speedy trial claim, see United States v. ...