200 F.3d 1000 (7th Cir. 2000)
MICHAEL S. MENZER,    Petitioner-Appellant,v.UNITED STATES OF AMERICA,    Respondent-Appellee.
No. 98-4186
In the  United States Court of Appeals  For the Seventh Circuit
Submitted May 6, 1999*Decided January 6, 2000

Appeal from the United States District Court  for the Eastern District of Wisconsin.  No. 96 C 894--Thomas J. Curran, Judge. [Copyrighted Material Omitted]
Before BAUER, COFFEY and RIPPLE, Circuit Judges.
COFFEY, Circuit Judge.


1
On February 26, 1993, a  jury in the Eastern District of Wisconsin  convicted Michael S. Menzer ("Menzer") for the  crime of arson resulting in death in violation of  18 U.S.C. sec. 844(i). Menzer was sentenced to a  term of 40 years' imprisonment, five years  supervised release, a $10,000 fine, and a $50  special assessment. On Menzer's direct appeal of  that conviction we affirmed, holding that: (1)  Menzer's speedy trial rights were not violated,  (2) prosecution under the federal arson statute  was appropriate, (3) Menzer's Miranda rights were  not violated, (4) evidence of the defendant's  prior conviction for sexual exploitation was  admissible to show motive, and (5) an upward  departure from Sentencing Guidelines was  appropriate. See United States v. Menzer, 29 F.3d  1223 (7th Cir. 1994).


2
In August 1996, Menzer filed a motion to  vacate, set aside, or correct his sentence  pursuant to 28 U.S.C. sec. 2255, arguing that his  trial counsel failed to provide effective  assistance of counsel. The trial court denied  Menzer's motion, finding that his trial counsel  was effective. Menzer appeals the district  court's denial of his sec. 2255 motion.


3
We  affirm.

I. BACKGROUND1

4
In the early 1980's, Michael Menzer purchased  an old mill and granary in Waldo, Wisconsin, and  opened the Onion River Mill and Art Gallery. In  December 1983, Menzer married Grace Durfee.  Afterwards, the family moved into the third  floor, while Menzer operated his art gallery and  souvenir shop on the first and second floors of  the mill.


5
In 1988, Grace and Michael's marriage began  deteriorating and Menzer filed for divorce in  1989. The Sheboygan County Circuit Court entered  the final decree terminating the marriage on  September 13, 1990. The defendant received the  mill and art gallery in the settlement, while  Grace obtained custody of the children. Grace and  the children remained in their residence above  the mill for three days after the divorce was  finalized and the defendant resided in his  mother's home. On September 15, 1990, Menzer and  his former wife Grace had an argument in which  she threatened to report Menzer for his recent  sexual abuse of their children Jason, Kyle, and  Tyrone. The following night, on September 16,  1990, while Grace and the children were sleeping  a fire broke out in the Onion River Mill. Grace  escaped with her youngest son Kyle, but the two  older boys died of smoke inhalation.


6
The defendant was federally indicted and tried  for arson resulting in death on January 28, 1992,  but the trial judge declared a mistrial. On  December 1, 1992, Menzer was re-indicted for the  same crime and his second trial commenced on  February 16, 1993. Defendant's counsel employed  a private investigator, an arson expert, and a  polygraph expert; and during the pretrial  hearing, he convinced the judge to admit  exculpatory polygraph evidence. The trial judge  commented after trial that Menzer's counsel  presented his case "well," while calling six  witnesses, including Menzer. The jury convicted  Menzer of arson resulting in death. With new  counsel Menzer appealed his conviction to this  court on five separate grounds, but did not raise  ineffective assistance of trial counsel. We  affirmed Menzer's conviction. Menzer, 29 F.3d at  1235.


7
In August 1996, Menzer filed a motion in the  trial court to vacate, set aside, or correct his  sentence pursuant to 28 U.S.C. sec. 2255. In his  brief in support of this motion, Menzer argued  that his trial counsel failed to provide  effective assistance of counsel and requested an  evidentiary hearing on the issue. The trial judge  denied Menzer's requested evidentiary hearing. In  August 1998, the trial court denied Menzer's sec.  2255 motion, finding that defense counsel's  performance was "highly effective." The district  court also denied Menzer's motion for  reconsideration, but granted him the requisite  certificate of appealability. See 28 U.S.C. sec.  2253(c)(2); Fed. R. App. P. 22(b)(1). Menzer  appeals the district court's denial of his sec.  2255 motion. We affirm.

II.  ISSUES

8
Menzer sets forth three separate reasons why he  believes the trial court erred in denying his  sec. 2255 motion. He argues that: (1) he was  denied his Sixth Amendment right to effective  assistance of counsel because his trial attorney  failed to present exculpatory evidence; (2) the  trial court erred in denying his sec. 2255 motion  without holding an evidentiary hearing; and (3)  the arson statute under which he was convicted  exceeds Congress' powers under the Commerce  Clause.

III.  ANALYSIS
A.  Standard of Review

9
"'In reviewing a district court's denial of a  sec. 2255 motion, we consider all questions of  law de novo and review all factual determinations  for clear error.'" Wilson v. United States, 125  F.3d 1087, 1090 (7th Cir. 1997) (quoting Bond v.  United States, 77 F.3d 1009, 1012 (7th Cir.  1996)); see also Stoia v. United States, 22 F.3d  766, 768 (7th Cir. 1994). "'[I]f two permissible  views exist, the fact-finder's choice between  them cannot be clearly erroneous.'" United States  v. Taylor, 72 F.3d 533, 546 (7th Cir. 1995)  (quoting United States v. McDonald, 22 F.3d 139,  144 (7th Cir. 1994)).

B.  Ineffective Assistance of Counsel

10
Menzer bears a heavy burden to establish an  ineffective assistance of counsel claim, as  counsel is presumed effective. See United States  v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995). In  order to succeed on an ineffective assistance of  counsel claim, the defendant must demonstrate  both that his counsel's performance fell below an  objective standard of reasonableness and that  this deficiency prejudiced his defense. See  Strickland v. Washington, 466 U.S. 668, 688-92  (1984).


11
To demonstrate that counsel's performance is  deficient, the defendant must establish the  specific acts or omissions of his counsel which  he alleges constitute ineffective assistance. See  Trevino, 60 F.3d at 338 (citing Strickland, 466  U.S. at 690). We then determine whether, under  all the circumstances of this case, these alleged  acts or omissions were made outside the wide  range of professionally competent assistance. Id.


12
Menzer points to five specific errors committed  by his trial counsel that allegedly rose to the  level of ineffective assistance: 1) failing to  call Paul Tiernan as a witness to testify that he  heard Kevin Oakley confess to the crime; 2)  failing to call Douglas Reed as a witness to  testify that he saw someone other than Menzer  fleeing the scene of the crime; 3) failing to  cross-examine Government witness firefighter  Ronald Jentsch to reveal that it was not Menzer  who disclosed knowledge of the origin of the  fire; 4) failing to invoke the law of the case  doctrine in order to preclude the trial judge  from revisiting inadmissibility rulings; and 5)  failing to conduct a proper investigation  regarding the four alleged deficiencies described  above.

1.  Failing to Call Paul Tiernan to Testify

13
Menzer argues that his lawyer was ineffective  for not calling Paul Tiernan as a witness to  testify that he heard Kevin Oakley confess to the  arson with which Menzer was charged. Menzer's  counsel explained that he did not call Tiernan  because his testimony regarding Oakley's  confession would be inadmissible hearsay. We are  of the opinion that not calling Tiernan to  testify was clearly a matter of trial strategy.  See United States v. Balzano, 916 F.2d 1273, 1294  (7th Cir. 1990) ("The Constitution does not  oblige counsel to present each and every witness  that is suggested to him.").

2.  Failing to Call Douglas Reed to Testify

14
Menzer also argues that his lawyer was  ineffective for not calling Douglas Reed as a  witness to testify that he saw an individual,  whose description does not match Menzer's,  fleeing the scene of the crime. Defendant's  counsel explained that he did not call Reed  because although the description of the fleeing  individual as a man of about sixty with puffy  white hair did not match Menzer, it still  implicated him because it matched the description  both of a mask that Menzer is known to have  worn2 and that of Menzer's step-father. Trial  counsel's decision not to call Reed as a witness  was a reasonable strategic decision. See Balzano,  916 F.2d at 1294-95.

3.  Failing to Cross-examine Ronald Jentsch

15
Menzer also argues that his lawyer was  ineffective for failing to cross-examine  firefighter Ronald Jentsch. Jentsch testified for  the government that early on the morning of the  fire, Menzer had approached him and during a  conversation told him the origin of the fire.  Because the fire department had not yet  ascertained the cause of the fire, it suspected  Menzer might be the arsonist. Jentsch's  description of Menzer as a white-haired man  wearing a suit jacket, however, was inaccurate.  Menzer, at the time of the alleged conversation,  had brown hair and was wearing a ski jacket.  Menzer contends that his lawyer should have  cross-examined Jentsch in order to establish that  the person who reported the origin of the fire  was someone other than Menzer. Defendant's  counsel stated that he did not cross-examine  Jentsch regarding his inconsistent physical  descriptions because the government had evidence  other than Jentch's testimony that established it  was indeed Menzer who disclosed the origin of the  fire to Jentsch. Menzer's counsel concluded there  would be little point in cross-examining Jentsch,  and instead argued that the origin of the fire,  which was on the west side of the Mill, was  obvious given that it was burned more  extensively. This was reasonable trial strategy.  See United States v. Brooks, 125 F.3d 484, 496  (7th Cir. 1997).


16
4.  Failing to Raise the Law of the Case  Doctrine


17
Menzer also argues that his counsel was  ineffective for failing to raise the law of the  case doctrine to preclude the trial judge from  revisiting his decision3 to exclude evidence of  Menzer's 1986 conviction for sexual exploitation  and the fact that he was on probation for that  conviction when the arson occurred.


18
Menzer's argument is misplaced. The law of the  case doctrine does not bar a trial court from  revisiting its own evidentiary rulings. We  recently explained in Monfils v. Taylor:


19
The law of the case doctrine is a flexible rule,  which "merely expresses the practice of courts  generally to refuse to reopen what has been  decided . . . ."; it is "not a limit on their  power." Messinger v. Anderson, 225 U.S. 436, 444. 32 S.CT. 73956 L.Ed. 1152 (1912). It is, however, a "rule of practice,  based on sound policy." Creek v. Village of  Westhaven, 144 F.3d 441 (7th Cir. 1998). Once an  issue is litigated and decided, "that should be  the end of the matter." Gertz v. Robert Welch,  Inc., 680 F.2d 527 (7th Cir. 1982). We have  recently . . . determined . . . that the  "presumption that a ruling made at one stage of  the proceedings will be adhered to throughout the  suit" was one "whose strength varies with the  circumstances; it is not a straightjacket."  Alston v. King, 157 F.3d 1113, 1116 (7th Cir.  1998) (quoting Avitia v. Metropolitan Club of  Chicago, Inc., 49 F.3d 1219 (7th Cir. 1995). . .  . [T]he most compelling application of the  doctrine occurs when a court of appeals has  decided an issue.


20
165 F.3d 511, 520 (7th Cir. 1998). Because the  Government did not appeal the evidentiary ruling  excluding Menzer's prior conviction, the trial  judge was free to revisit this ruling in Menzer's  second trial. See Rothner v. City of Chicago, 929  F.2d 297, 301 (7th Cir. 1991).


21
Moreover, this argument is based on evidence  that Menzer possessed at the time of his direct  appeal. He could have, but did not, raise this  issue on direct appeal, and consequently cannot  raise this issue for the first time on appeal of  the district court's denial of his sec. 2255  motion. See, e.g., Barker v. United States, 7  F.3d 629, 632 (7th Cir. 1993) ("The failure to  raise an issue on direct appeal generally bars a  defendant from raising it later in a post-  conviction proceeding [unless] the defendant can  demonstrate cause for the procedural default as  well as actual prejudice from the failure to  appeal."); Kelly v. United States, 29 F.3d 1107,  1112 (7th Cir. 1994) ("[A]n argument that was not  presented on direct appeal cannot first be  advanced on collateral review 'absent a showing  of cause' for the failure to advance the argument  sooner 'and some showing of actual prejudice  resulting from the alleged constitutional  violation.'") (quoting Wainwright v. Sykes, 433  U.S. 72, 84 (1977)).


22
5. Failing to Properly Investigate the  Deficiencies Described Above


23
Finally, Menzer argues that his counsel was  ineffective for failing to conduct a proper  investigation regarding the four deficiencies  described above. However, because we have not  found fault with counsel regarding these alleged  deficiencies, we disagree with Menzer's  contention that his counsel was deficient for  deciding not to investigate them. See, e.g.,  United States v. Zarnes, 33 F.3d 1454, 1473-74  (7th Cir. 1994); United States v. Jackson, 935  F.2d 832, 845 (7th Cir. 1991).


24
C. 18 U.S.C. sec. 844(i): Federal Jurisdiction  over Arson


25
Menzer's next argument is that the district  court lacked subject matter jurisdiction over his  case because the arson statute under which he was  convicted exceeds Congress' power under the  Commerce Clause. Defendant presented this  argument unsuccessfully on his direct appeal,  where we upheld the constitutionality of the  federal arson statute. Menzer, 29 F.3d at 1229-  30. In this successive appeal Menzer offers no  compelling reason to revisit this issue. Indeed,  it is interesting to note that defendant observes  that this circuit has previously held that the  federal arson statute at issue does not exceed  congressional power under the Commerce Clause.  See United States v. Hicks, 106 F.3d 187, 189-90  (7th Cir.), cert. denied, 520 U.S. 1258 (1997).  Accordingly, we refuse to overrule Menzer's  conviction under sec. 844(i) and hold that  Congress had the power to enact that statute  under the Commerce Clause.


26
D. The District Court's Summary Dismissal of  Defendant's sec. 2255 Motion without an  Evidentiary Hearing


27
Menzer's final argument is that the district  court erroneously refused to conduct an  evidentiary hearing with respect to his  ineffective assistance claims. This argument  fails because where "a record conclusively  demonstrates that a defendant is entitled to no  relief on his sec. 2255 motion to vacate, a full  evidentiary hearing is not required." Politte v.  United States, 852 F.2d 924, 931 (7th Cir. 1988)  (citation omitted). Indeed, "a judge should  dismiss the petition without a hearing where . .  . it 'plainly appears from the facts of the  motion and any annexed exhibits and the prior  proceedings in the case the movant is not  entitled to relief.'" Aleman v. United States,  878 F.2d 1009, 1012 (7th Cir. 1989) (quoting Rule  4(b) of the Rules Governing sec. 2255  Proceedings). "[T]o allow indiscriminate hearings  in federal post-conviction proceedings would  eliminate the chief virtues of the justice  system-- speed, economy, and finality." United  States v. Delgado, 936 F.2d 303, 309 (7th Cir.  1991) (citation omitted).


28
We hold that Menzer's ineffective assistance  claim is without merit, and he is not entitled to  have his sentence vacated, set aside, or  corrected under sec. 2255. Furthermore, the  district court did not err in denying Menzer's  motion for an evidentiary hearing.

AFFIRMED


Notes:


*
 This successive appeal has been submitted to the  same panel under Operating Procedure 6(b). After  an examination of the parties' briefs and the  record we have concluded that oral argument is  unnecessary. Accordingly, the appellant's request  for oral argument is denied and the appeal is  submitted on the briefs and the record. See Fed.  R. App. P. 34(a); Cir. R. 34(f).


1
 For a recitation of the facts in this case, see  Menzer, 29 F.3d at 1225-26. We set forth only  those facts relevant to the disposition of this  appeal.


2
 With Mr. Reed's assistance, a composite sketch of  the man seen by Reed was disseminated in the  media. Sheboygan resident Peter Kovacs contacted  the sheriff's department to tell them that the  composite sketch looked like a mask that Menzer  owned.


3
 In Menzer's first trial Judge Curran excluded  evidence of Menzer's 1986 conviction for sexual  exploitation. When this evidence was presented,  Judge Curran declared a mistrial. When Menzer was  later retried, the case was assigned to Judge  Evans who presided over Menzer's second trial and  admitted evidence of his prior conviction for the  purpose of showing motive. Menzer, 29 F.3d at  1234.


