The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On October 27, 2005, this court entered an Order (#11) which reopened this case and allowed Petitioner, Alfred J. Gant, to file an Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. On November 28, 2005, Petitioner filed his Amended Motion under 28 U.S.C. § 2255 (#12). On January 27, 2006, the Government filed its Response to the Amended Motion (#13). Following this court's careful consideration of Petitioner's Amended Motion and the Government's Response, this court GRANTS Petitioner's Amended Motion.
On May 22, 2003, Petitioner was charged by indictment with the offense of unlawful possession of a firearm by a felon. The case proceeded to a jury trial on November 12, 2003. On November 19, 2003, the jury returned a verdict finding Petitioner guilty of the charged offense. Petitioner's sentencing commenced on February 27, 2004, and concluded on April 1, 2004. Petitioner faced a mandatory minimum sentence of 15 years because he had four prior convictions for a violent felony or serious drug offense. See 18 U.S.C. § 924(e)(1). This court also found Petitioner to be an armed career criminal under the United States Sentencing Guidelines. Under the Sentencing Guidelines, Petitioner had an offense level of 33 and a criminal history category of IV so that his Guideline sentencing range was 188 to 235 months. This court sentenced Petitioner to a term of 188 months in the Federal Bureau of Prisons. At sentencing, this court stated that it accepted the testimony of the witnesses called by Petitioner and recognized that Petitioner had become a rehabilitated person following his release from the Illinois Department of Corrections in 1995. This court further recognized, however, that it was bound by the Sentencing Guidelines so that "the Court's hands are tied somewhat." This court imposed the minimum sentence allowed by the Sentencing Guidelines, 188 months.
Petitioner filed a timely Notice of Appeal on April 9, 2004. On April 14, 2004, this court granted Petitioner's Motion for Appointment of Counsel. Attorney Carol A. Dison, who had been retained by Petitioner and represented him at trial and at sentencing, was appointed to represent him on appeal. On June 24, 2004, while Petitioner's case was pending before the Seventh Circuit Court of Appeals, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004). Subsequently, on July 9, 2004, the Seventh Circuit decided United States v. Booker, 375 F.3d 508 (7th Cir. 2004). The Seventh Circuit stated in Booker that the Supreme Court's decision in Blakely "dooms the guidelines insofar as they require that sentences be based on facts found by a judge." Booker, 375 F.3d at 511. The Seventh Circuit then concluded that the Sentencing Guidelines "violate the Sixth Amendment as interpreted by Blakely." Booker, 375 F.3d at 513. The Seventh Circuit noted that this may mean that the Guidelines "must fall." Booker, 375 F.3d at 514-15.
The Supreme Court granted certiorari and decided Booker on January 12, 2005. United States v. Booker, 543 U.S. 220 (2005). In Booker, the Supreme Court issued two separate majority opinions. The first held that Blakely applied to the Sentencing Guidelines. Booker, 543 U.S. at 243-44. The second, remedial decision held that the provision of the federal sentencing statute that made the Sentencing Guidelines mandatory was severable and "must be severed and excised." Booker 543 U.S. at 245. The Court stated that without the "mandatory" provision, "the Act nonetheless requires judges to take account of the Guidelines together with other sentencing goals." Booker, 543 U.S. at 259. District courts, therefore, are no longer bound to apply the Guidelines, but must consult the Guidelines and take them into account when sentencing. Booker, 543 U.S. at 264. Accordingly, the decision in Booker changed "the degree of flexibility judges . . . enjoy in applying the guideline system." McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005), cert. denied, 125 S.Ct. 2559 (2005). The Court in Booker specifically stated that both of its holdings must be applied to all cases on direct review. Booker, 543 U.S. at 268.
On February 1, 2005, the Seventh Circuit affirmed Petitioner's conviction. United States v. Gant, 396 F.3d 906 (7th Cir. 2005). On appeal, Petitioner raised only evidentiary issues, which were rejected by the Seventh Circuit. On February 17, 2005, Petitioner's counsel filed a Petition for Rehearing with the Seventh Circuit. In this Petition, counsel argued only that, based upon the Supreme Court's decision in Booker, the Sentencing Guidelines are no longer mandatory and the sentencing judge would be free to sentence Petitioner to the mandatory minimum sentence of 180 months. Counsel argued that the difference between 180 months and 188 months could have a profound effect on Petitioner, who was 57 years old at the time of sentencing. Counsel asked that the case be remanded for resentencing based upon Booker. The Seventh Circuit denied the Petition for Rehearing on March 10, 2005.
On May 18, 2005, Petitioner filed a pro se Motion under § 2255 to Vacate, Set Aside or Correct Sentence (#1). Petitioner argued that he should not have been sentenced as an armed career criminal because he did not have the predicate convictions due to the fact that his civil rights had been restored as to two of his prior state court convictions. Petitioner also argued that he was denied his Sixth Amendment right to have all previous convictions proved beyond a reasonable doubt at sentencing. On June 17, 2005, the Government filed its Response (#5) to Petitioner's Motion. The Government argued that, because Petitioner did not raise his argument that he did not have the necessary convictions to qualify him for sentencing as an armed career criminal at sentencing or on direct appeal, the issue was procedurally defaulted. The Government also argued that Petitioner's second argument, which appeared to be based upon Booker, was similarly procedurally defaulted. The Government further noted that, in any case, "the fact of a prior conviction" falls outside the rule that facts increasing a sentence beyond the applicable statutory maximum must be proved to a jury beyond a reasonable doubt. On June 30, 2005, Petitioner filed a Reply (#6). Petitioner noted that his counsel had raised a Booker issue in his petition for rehearing before the Seventh Circuit. Petitioner argued that he should not be precluded from raising his arguments in a § 2255 Motion because he had ineffective assistance of counsel at sentencing and on appeal.
On July 18, 2005, this court entered an Order (#7) and denied Petitioner's Motion under § 2255 to Vacate, Set Aside, or Correct Sentence. This court agreed with the Government that Petitioner's claims were procedurally defaulted because they were not raised in his direct appeal. This court noted that Petitioner raised an additional claim of ineffective assistance of counsel in his Reply. This court concluded, however, that an argument not made in a § 2255 petitioner's initial brief should be considered waived.
On July 28, 2005, Petitioner filed a Motion for Rehearing (#9). Petitioner argued that this court should have allowed him to amend his Motion to add the issue of ineffective assistance of counsel because such an amendment would have been timely as it was still within the one-year time frame for filing a Motion under § 2255. Petitioner asked this court to reopen the case and allow him to amend his § 2255 Motion to add the issue of ineffective assistance of counsel. The Government did not file a Response to Petitioner's Motion for Rehearing.
As noted previously, this court subsequently entered an Order (#11) which granted Petitioner's Motion for Rehearing, reopened the case, and allowed Petitioner to file an Amended Motion to Vacate, Set Aside, or Correct Sentence. This Amended Motion is now before this court for ruling.
In his Amended Motion (#12), Petitioner first argued that his trial counsel was ineffective for failing to investigate and challenge his prior convictions at sentencing. Petitioner's second argument was that this court improperly made a factual finding at sentencing that Petitioner had the requisite three previous convictions so that he was subject to a mandatory minimum sentence under 18 U.S.C. § 924(e)(1). Petitioner relied on United States v. Ngo, 406 F.3d 839, 841 (7th Cir. 2005). Petitioner's third argument was that his trial counsel was ineffective on direct appeal for failing to raise a Booker argument prior to the petition for rehearing. Petitioner contended that, if counsel would have raised a Booker challenge to his sentence on direct appeal, the Seventh Circuit would have remanded the case for further proceedings.
On January 27, 2006, the Government filed its Response to Petitioner's Amended Motion under 28 U.S.C. § 2255 (#13). The Government argued that Petitioner did not offer a shred of evidence in support of his argument that his prior convictions were improperly used to establish that he was an armed career criminal under 18 U.S.C. § 924 (e). This court agrees with the Government on this point. The presentence investigation report clearly set out four qualifying convictions, only three of which were necessary to establish Petitioner's status as an armed career criminal. At the sentencing hearing, Vincent P. Kistner, the United States probation officer who prepared the report, stated that records of Champaign County documented these convictions. Petitioner's conclusory, unsupported assertion that his civil rights had been restored ...