The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter is before the Court on Petitioner Robert Scott's Motion to Vacate, Correct, or Set Aside his conviction and sentence pursuant to 28 U.S.C. § 2255 (d/e 1) (Petition). On April 13, 2000, a jury found Scott guilty of conspiracy to possess with intent to distribute and distribution of narcotics, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(vii). On September 25, 2000, the Court sentenced Scott to 326 months imprisonment. United States v. Scott, 116 F.Supp.2d 987 (C.D.Ill. 2000). The Seventh Circuit affirmed. United States v. Scott, 284 F.3d 758 (7th Cir. 2002). Scott now raises twenty-two grounds to set aside his conviction and sentence. For the reasons set forth below, the Court determines that an evidentiary hearing should be held with respect to Scott's claim of ineffective assistance of appellate counsel for raising on direct appeal the issue of ineffective assistance of trial counsel. The remaining claims lack merit and are dismissed.
On June 11, 1999, Scott was indicted. Indictment in Case No. 99-30043 (Indictment) filed in this matter collectively with the criminal docket (Criminal Docket) (d/e 3). Scott's first trial commenced on November 29, 1999. Scott was represented by attorneys Frank Schweitzer and Greg Grigsby. Scott had a possible conflict of interest with Grigsby because Grigsby had previously prosecuted Scott in certain earlier unrelated state court proceedings. Scott, however, waived any conflict before the trial commenced. Criminal Docket, Minute entry entered November 22, 1999.
During Scott's first trial, the Government was represented by Assistant United States Attorney Timothy Bass. Bass introduced, among other things, motel and telephone records, and drugs seized from co-conspirators Shawn Jones and Tim Burnett. Transcripts of Proceedings of First Trial in Case No. 99-30043 (criminal docket entry nos. 139, 148-54) (1Tr), 1009-12, 1078-86, 517-75, 82-86, 1153-1208. The Court hereby makes all of the transcripts of proceedings in Case No. 99-30043 part of the record in this case. Scott testified at the first trial. He denied any involvement in any conspiracy to distribute any drugs. 1Tr. at 1433-58. Scott also presented other witnesses to support his version of events. On December 15, 1999, the Court ordered a mistrial after the jury announced that it was unable to reach a unanimous verdict. Criminal Docket, Minute entry dated December 15, 1999.
After the first trial, both of Scott's attorneys withdrew, and Scott retained attorney Michael Metnick to represent him at the retrial. Bass again represented the Government at the second trial. Co-conspirator Shawn Jones had refused to testify at the first trial and continued to refuse to testify. Bass filed a motion to admit Jones' grand jury testimony at the second trial on the grounds that Scott had caused Jones to be unavailable to testify. Bass argued that Scott had bribed or coerced Jones not to testify. Bass argued that Scott had wrongfully contributed to Jones' unavailability and, thus, Jones' grand jury testimony was admissible. Fed. R. Evid. 804(b)(6). Bass further argued that Scott gave up his Sixth Amendment confrontation right with respect to Jones' testimony because Scott wrongfully procured Jones' refusal to testify.
The jury for the second trial was selected on Tuesday, March 28, 2000. On Monday, April 3, 2000, the Court held a hearing outside the presence of the jury in which the Court granted Jones immunity in order to testify. Jones again refused to testify. The Court found Jones to be in contempt. The Court further heard evidence outside the presence of the jury regarding Bass' motion to admit Jones' grand jury testimony. At the end of the hearing, the Court allowed the Government's motion. The Court ruled that Scott had waived his right of confrontation as to Jones' testimony due to his involvement in Jones' refusal to testify. The Court also determined that Scott had wrongfully contributed to Jones' unavailability to testify. Order entered April 4, 2000 (criminal docket entry 207). See Fed. R. Evid. 804(b)(6). The Court hereby makes the April 4, 2000, Order a part of the record in this case. The trial began on April 3, 2000, after the hearing.
On Tuesday, April 4, 2000, the Court informed the parties outside of the presence of the jury that a juror had to be excused because the juror's father was going to be admitted to the hospital for a cardiac procedure. Transcripts of Proceedings of Second Trial (criminal docket entry nos. 211, 222, 264-71) (2Tr.) at 438. Metnick told the Court, "And I will inform the Court that I believe my mother is going to have a valve replacement on Monday of this week." 2Tr. at 439. The Court asked if Metnick meant the following Monday. Metnick responded, "She was informed last Friday that she's going to have to have one in two weeks and I believe--I'll know today . . . ." Id. At the end of the day, again outside the presence of the jury, the Court and counsel discussed scheduling. The Court originally had not intended to conduct the trial on Fridays, but now inquired of the parties if their schedules would permit holding trial on two Fridays, April 7 and 14, 2000. Id. at 501. Metnick responded to the Court's inquiry, "I think the 14th--yeah, one of the things I just mentioned, the thing with my mother, and I wanted to finish the case also." Id.
Bass again sought to introduce, at the second trial, motel and telephone records, and drugs (quantities and type), that had been admitted at the first trial. Attorney Metnick indicated to the Court that he had agreed to stipulate to the records and drug quantities and quality, as a matter of trial strategy. Scott objected to stipulating to their admission. 2Tr. at 1105-07. Bass stated that if there was no stipulation, the Government would ask the Court to admit the evidence based on the foundation testimony submitted at the first trial. Id. at 1107. Scott complained, but the Court told Scott that his counsel had the authority to make this decision, and Scott had to abide by that decision. Id. at 1108-14. The evidence was admitted by stipulation.
The trial continued. At the end of the day on Monday, April 10, 2000, the Court again discussed scheduling with counsel outside the presence of the jury:
MR. METNICK: And the other is just to inform the Court that I think that we're all confident that the Government's going to conclude its case tomorrow and the defendants will be able to put on its case.
THE COURT: Good. What does that give us by way of projection on our time?
MR. METNICK: Judge, Mr. Bass and I have discussed, and I think that the case will get to the jury on Thursday. And I am going to ask the Court that if we finish at some time Wednesday, it's not that--if there's still time in the day if we can recess and call the jury back for Thursday. Wednesday's the day of my mother's surgery and I know I want to be in contact with --
THE COURT: I would rather not break into the closings in any event, if we can avoid that. 2Tr. at 1251-52. Bass rested the Government's case on Tuesday, April 11, 2000, and Metnick began presenting the defense. At the end of the day, Metnick again asked if the case could go to the jury on Thursday. Metnick told the Court, "I know for a fact our case will not last until the end of the day tomorrow." 2Tr. at 1498-99. The Court and Bass agreed that the parties would argue the case on Thursday. Id.
Scott did not testify in his own defense at this trial. The Court had an extensive colloquy with Scott outside the presence of the jury at the end of the day on Wednesday, April 12, 2000, concerning his decision not to testify. 2Tr. at 1637-54. The Court repeatedly informed Scott that he had the absolute right to decide whether to testify. Scott said on numerous occasions during the colloquy that he had been required to follow his attorneys' instructions. Toward the end of the colloquy, Metnick interjected:
MR. METNICK: Judge, I shouldn't interject, but he's playing games with you right now, and he's absolutely playing games with you right now, and it's obvious he's playing games with you right now, and we're ready to proceed as we have been proceeding. And I'm telling you that's what I see right now and I think there's enough for the Court to make a finding that that's what's going on, and to let's just proceed without him testifying as it is going.
I mean I'm just sitting here listening to this colloquy, and I realize he's my client, but I'm also saying this for his good. We're ready to argue this case tomorrow and we're ready to win this case tomorrow, and hopefully that will be the last you'll see of Robert Scott and that will be the last he'll see of you.
But I could just see us going through this again another 30 minutes, you know, tomorrow with the courtroom full of people and so forth. 2Tr. at 1651-52. The colloquy finally ended shortly thereafter:
THE COURT: One final time. Mr. Scott, was the decision not to testify ultimately your decision that you made and you did not testify?
MR. SCOTT: The decision was--had to be ultimately mine I guess, Your Honor. I don't mean to cause the Court any problems, Your Honor. I don't know what my legal rights are.
THE COURT: Based upon the prior admonition in the first trial and based upon everything that is now on the record and what has been stated by all of counsel and acknowledged by Mr. Scott, the Court finds that he did make the decision as a personal one ultimately with the advice of counsel not to testify in this case. 2Tr. at 1653-54. Counsel argued on Thursday, April 14, 2006. The jury found Scott guilty.
During the trial, attorney Metnick displayed physical difficulties. His speech was slurred on occasion. He stumbled. His throat became dry. He lost his train of thought on occasion. See 2Tr. at 1252, 1473. By the end of the trial, Metnick started wearing an eye patch over one eye. After the trial, Metnick was diagnosed as having Multiple Sclerosis.
Scott dismissed Metnick after the trial and hired Grigsby again to represent him at sentencing. At sentencing, Scott objected to the Court making any factual findings regarding the type or quantity of drugs that he distributed. Scott argued that under Apprendi v. New Jersey, the jury had to make these findings beyond a reasonable doubt. Apprendi, 530 U.S. 466 (2000). The Apprendi decision was handed down after the trial, but before the sentencing hearing. Under Apprendi, any fact which would increase the statutory maximum penalty that a defendant faces (other than a proof of a prior conviction) must be alleged in the Indictment and proven to a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490. The maximum sentence for conspiracy to distribute an undetermined amount of marijuana in this case was 10 years. 21 U.S.C. § 841(b)(1)(D); see Scott, 116 F.Supp.2d at 989. The maximum sentence for conspiracy to distribute an undetermined amount of cocaine was 30 years because the Defendant had a prior felony drug conviction. 21 U.S.C. § 841(b)(1)(B). The jury found Scott guilty, but did not make any determinations as to whether he conspired to sell marijuana or cocaine, or both, or the quantity of either drug involved. Thus, Grigsby argued that the 10 year statutory maximum for marijuana must be applied in this case because the jury made no finding that Scott conspired to distribute cocaine and made no findings as to the quantity of drugs involved.
The Court agreed that the jury should have determined beyond a reasonable doubt the type of drugs, but found that the error was harmless in this case. United States v. Scott, 116 F.Supp.2d at 990. The Court found that any rational juror would find beyond a reasonable doubt that the conspiracy involved at least some distribution of cocaine. Id. at 990-91. The Court, however, agreed that it could make no finding as to the quantity of cocaine. As a result, the Court determined that the maximum sentence was 30 years since Scott had a prior drug conviction. Id. at 990.
Scott also objected to the calculation of the quantity of drugs for which he was held accountable. He argued that some statements by co-conspirators were contradicted by previous statements. The Court overruled the objection and found that the evidence supported the calculation that held Scott accountable for the equivalent of 2,500.18 kilograms of marijuana. Id. at 992.
Scott's counsel did not object to the convictions on which his criminal history calculations were based. Scott now claims that he was not represented by counsel in several of those state convictions. He did not raise this point at the sentencing hearing. The Presentence Investigation Report (PSR) stated that he was represented by counsel in those cases. Presentence Investigation Report, (criminal docket entry 243), ¶¶ 34-50. The Court makes the PSR a part of the record in this case. Based on the PSR, the Court determined that Scott had 15 criminal history points, placing him in Criminal History Category VI. U.S. v. Scott, 116 F.Supp.2d at 994. The Court determined that the sentencing range was 262 to 327 months. The Court sentenced Scott to 326 months imprisonment. Id. at 995.
Scott appealed his conviction and sentence. Attorney Sean Nash represented Scott on the appeal. Nash raised ...