The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Tyrone Holman's ("Holman's") motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) and two amendments to that motion (Docs. 3 & 5). The government responded to Holman's filings (Docs. 9 & 10).
In March 2001, Holman was indicted on one count of conspiring to distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 (count 1), and on three counts of possessing with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (counts 3, 4 and 5 in the Second Superseding Indictment).
Represented by Eric Butts ("Butts"), Holman pled guilty without a plea agreement in October 2002. During the plea colloquy, the Court confirmed that Holman had discussed the indictment and the case in general with Butts and that Holman was satisfied with Butts's representation. The Court also reviewed the charges against Holman, who assured the Court that he understood them and had no questions about them. The Court also warned him of the statutory penalties, including a sentence of imprisonment for count 1 of ten years to life if his relevant conduct was 50 grams or more of crack cocaine and five to forty years if his relevant conduct was 5 grams or more but less than 50 grams of crack cocaine, and for counts 3, 4 and 5 of up to 20 years. The Court confirmed that Holman had discussed the federal sentencing guidelines with Butts, including how they might apply in his case. It further warned Holman that his sentence would be based on his relevant conduct and that the Court would not be able to determine his sentence until it had reviewed a presentence investigation report. It advised Holman that if the sentence was more severe that what he expected, he would still be bound by his plea of guilty. Holman then admitted that he sold crack cocaine as alleged in counts 3, 4 and 5 and that he participated in a conspiracy to distribute more than 50 grams of crack cocaine. Holman confirmed that no threats or 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.
On January 23, 2003, the Court held a sentencing hearing.*fn1 At sentencing, neither Holman nor the government objected to the Presentence Investigation Report ("PSR"). The Court therefore adopted it and made the following findings. It found that Holman's relevant conduct was at least 35 grams but less than 50 grams of crack cocaine, which under the United States Sentencing Guideline*fn2 ("U.S.S.G.") § 2D1.1 yielded a base offense level of 30. The Court adjusted the offense level upward by 2 points under U.S.S.G. § 2D1.1(b)(1) because Holman possessed a gun during the commission of the crime, yielding an offense level of 32. The Court further found that Holman was a career offender under U.S.S.G. § 4B1.1 based on prior drug or violent felony convictions, which raised his offense level to 34. The Court then reduced Holman's offense level by 3 points pursuant to U.S.S.G. § 3E1.1(a) & (b) because he accepted responsibility for his crimes, yielding a total offense level of 31. Considering Holman's criminal history category of VI, established either by his career offender status under U.S.S.G. § 4B1.1 or his 14 criminal history points under U.S.S.G. Ch. 5, pt. A, this yielded a sentencing range of 188 to 235 months in prison. The Court sentenced Holman to serve 228 months on each count, all to run concurrently and all within the applicable statutory sentencing ranges. Judgment was entered on January 24, 2003. At no time prior to or during the sentencing hearing did Holman ask to withdraw his plea of guilty.
Holman appealed to the Seventh Circuit Court of Appeals, where Butts filed an Anders brief seeking to be allowed to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967). The Court of Appeals granted Butts's motion to withdraw and dismissed Holman's appeal on July 31, 2003. United States v. Holman,72 F. App'x 469 (7th Cir. 2003). The Court of Appeals issued the mandate on August 22, 2003. Holman did not petition the United States Supreme Court for a writ of certiorari.
Holman filed this timely § 2255 motion on December 19, 2003. In it, Holman asks the Court to vacate his conviction and sentence on the grounds that Butts was constitutionally ineffective in his erroneous pre-plea advice about the sentence Holman was likely to receive. In a July 18, 2004, supplement to his § 2255 motion, Holman advances a direct challenge to his sentence based on Blakely v. Washington, 542 U.S. 296 (2004), and in an October 4, 2004, supplement, he complains of several errors in application of the Unites States Sentencing Guidelines and reiterates his other arguments.
In its response, the government argues that Butts was not ineffective and that Holman's Blakely argument must fail because United States v. Booker, 543 U.S. 220 (2005), the case that applied Blakely to the United States Sentencing Guidelines, is not retroactively applicable on collateral review. In its supplemental response, the government submits an affidavit from Butts regarding his representation of Holman.
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 evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255.
The Court finds that Holman has not presented any evidence or argument meriting either a hearing ...