The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Vernon Henry's ("Henry") motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1), an amendment to that motion (Doc. 3) and a supporting brief (Doc. 7). The government responded to Henry's filings (Doc. 10).
In August 2000, Henry was indicted on one count of conspiring to distribute 50 grams of more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii) and 846.
Represented by James Stern ("Stern"), Henry proffered information to government agents, then pled guilty pursuant to a written plea agreement in November 2001. During the plea colloquy, the Court confirmed that Henry had discussed the indictment and the case in general with Stern and that Henry was satisfied with Stern's representation. The Court also reviewed the charge against Henry, who assured the Court that he understood it and had no questions about it. The Court also warned him of the statutory penalties, including a sentence of imprisonment of ten years to life, that could be imposed upon a guilty plea. The Court advised Henry of his rights and verified that he had signed the plea agreement after reviewing it with Stern and that he understood that he was waiving his right to collaterally attack his sentence. Henry then agreed that he was a runner for the charged drug conspiracy where he would obtain crack cocaine customers for the conspiracy and be compensated in crack cocaine for that and other work. He also agreed orally and in a written stipulation of facts that he had been advised of his rights orally and in writing before making a self-incriminating statement to law enforcement officers. Stipulation, ¶ 2. Henry twice confirmed that no threats or other promises had been made to him to induce him to plead guilty and that he was pleading guilty as his own free and voluntary act. The Court then accepted his guilty plea.
Henry's written plea agreement contained a provision stating that Henry understood the nature of the charges and his right to persist in his plea of not guilty. Plea Agreement, Part I, ¶ 9. There were also provisions in which Henry agreed that his relevant conduct was between 500 grams and 1.5 kilograms of crack cocaine based on total amounts of crack cocaine distributed by coconspirators that were foreseeable to him, Plea Agreement, Part II, ¶ 3, and that he was entitled to a reduction in his offense level because he was a minor participant under United States Sentencing Guidelines Manual ("U.S.S.G.") 3B1.2(b), Plea Agreement, Part II, ¶ 5. The plea agreement also contained the following provision:
The Defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging all this, the Defendant knowingly waives the right to appeal any sentence within the maximum provided in the statute(s) of conviction (or the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever, in exchange for the concessions made by the United States in this plea agreement. The Defendant also waives his right to challenge his sentence or the manner in which it was determined in any collateral attack, including but not limited to a motion brought under Title 28, United States Code, Section 2255.
Plea Agreement, Part II, ¶ 11 (emphasis added).
On February 7, 2002, the Court held a sentencing hearing.*fn1 At sentencing, neither Henry nor the government objected to the Presentence Investigation Report ("PSR"), which found that Henry's relevant conduct was between 500 grams and 1.5 kilograms of crack cocaine, the category contemplated by the plea agreement. Therefore, the Court found that Henry's base offense level was 36 pursuant to U.S.S.G. § 1D1.1.*fn2 The Court reduced the offense level by two levels under U.S.S.G. § 3B1.2(b) because Henry was a minor participant in the charged conspiracy and by three levels under U.S.S.G. § 3E1.1(a) & (b) because he accepted responsibility for his crime, yielding a total offense level of 31. Considering his criminal history category of III, this yielded a sentencing range of 135 to 168 months. The Court sentenced Henry to serve 135 months in prison. Judgment was entered on February 8, 2002, and an amended judgment was entered on February 13, 2002. At no time during the sentencing hearing did Henry ask to withdraw his plea of guilty, and he did not appeal his conviction.
Henry filed this timely § 2255 motion on February 7, 2003. In it, Henry asks the Court to vacate his conviction and sentence on a variety of grounds: (1) that Stern was ineffective for (a) failing to explain the charge to him before his guilty plea, (b) failing to ask the Court to allow him to withdraw his guilty plea and (c) failing to bargain with the government for the terms of the plea, all in violation of the Sixth Amendment, (2) that his conviction was illegal because it was the product of an illegal arrest and a coerced confession in violation of the Forth and Fifth Amendments and that Stern was ineffective for failing to move to suppress it in violation of the Sixth Amendment, (3) that his plea was not knowing and voluntary due to Stern's failure to explain the law and the facts to him in violation of his Fifth Amendment, (4) that Stern was ineffective in failing to object to the calculation of relevant conduct in the PSR in violation of the Sixth Amendment, (5) that Stern was ineffective in his advice during Henry's proffer and that, absent the improper proffer, there was no factual basis for a conviction for possession of crack cocaine with intent to distribute it, and (6) that he was entitled to a three-level reduction in his offense level for being a minimal participant rather than only a two-level reduction for being a minor participant.
On July 18, 2003, Henry filed an amendment to his petition alleging additional grounds to vacate his sentence: (7) that there was no evidence that Henry took drug customers to his co-defendants to purchase drugs, and (8) that he is retroactively entitled to the benefit of Amendment 640 to U.S.S.G. § 2D1.1, which became effective in November 2002 and provides that the maximum base offense level for a minor or minimal participant in a conspiracy is 30.
In its response, the government argues that Henry waived his claims as they relate to his sentence and the manner of calculating it, procedurally defaulted on other claims by failing to raise them on direct appeal, and is not entitled to relief in any case. The government did not argue that Henry's amendment is untimely under Mayle v. Felix, 125 S.Ct. 2562 (2005). Therefore, any such timeliness argument is waived.
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. However, "[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). Relief under § 2255 is available only if an error is "constitutional, jurisdictional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997) (quotations omitted). It is proper to deny a § 2255 motion without an ...