The opinion of the court was delivered by: Murphy, Chief District Judge
On April 26, 2004, Vernon Trenton filed the instant motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (Doc. 1). Trenton filed exhibits in support of the motion on May 6, 2004 (Doc. 2), and he was later granted leave to supplement his motion (see Doc. 7) and to amend it (see Doc. 11). The Government responded to the motion on July 19, 2005 (Doc. 12), and Trenton filed a reply on August 12, 2005 (Doc. 13).
Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts, If [a 2255] motion has not been dismissed at a previous stage in the proceeding, the judge, after the answer is filed and any transcripts or records of prior court actions in the matter are in his possession, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates.
The Seventh Circuit has noted that "[n]o hearing is required in a section 2255 proceeding if the motion raises no cognizable claim, if the allegations in the motion are unreasonably vague, conclusory, or incredible, or if the factual matters raised by the motion may be resolved on the record before the district court." Oliver v. United States, 961 F.2d 1339, 1343 n.5 (7th Cir. 1992), citing United States v. Frye, 738 F.2d 196 (7th Cir. 1984). In this case, the Court finds that the factual matters raised by the motion may be resolved on the record, and the motion raises no cognizable claim. Accordingly, the Court will resolve the motion without a hearing.
The Government's lengthy and thorough response sets forth the procedural and factual background underlying the conviction and sentence in this case. This Court is familiar with the extensive background and will repeat the facts only where necessary.
A federal grand jury in Benton, Illinois, returned a one count indictment charging Trenton with conspiracy to distribute and possess with intent to distribute crack cocaine, in violation of Title 21 U.S.C. §§ 841(a)(1) and 846. On February 20, 2002, a superseding indictment added two counts: conspiracy to possess crack cocaine after previously having been convicted of distribution of crack cocaine, in violation of Title 21, United States Code, §§ 844(a) and 846 (Count 2), and use of a firearm during a drug trafficking offense, in violation of Title 18, United States Code, §§ 924(c)(1)(A) and 2 (Count 3). Count 1 of the superseding indictment again charged conspiracy to distribute and possess with intent to distribute crack cocaine, in violation of Title 21, United States Code, §§ 841(a)(1), 841(b)(1)(C), and 846. On February 26, 2002, the Government filed an Information pursuant to 21 U.S.C. § 851.
The undersigned District Judge presided over the jury trial of this matter from February 26, 2002 to February 28, 2002. The jury found Trenton guilty of all three counts of the indictment and returned a special verdict finding that the amount of crack cocaine was 5 grams or more but not 50 grams or more (see Docs. 44-48 in Cause No. 01-40079-GPM).
At a sentencing hearing on August 14, 2002, the Court sentenced Trenton to concurrent terms of imprisonment of 293 months on Count 1 and 240 months on Count 2, and a consecutive term of 120 months imprisonment on Count 3 (see Doc. 69 in Cause No. 01-40079-GPM). Trenton filed an immediate appeal (see Doc. 132 in Cause No. 01-40079-GPM).
Appellate counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). In his brief, appellate counsel addressed many issues but concluded that there were no non-frivolous issues to be pursued on appeal. After Trenton failed to respond to the Seventh Circuit's invitation for his response, appellate counsel's request to withdraw was granted and the appeal was dismissed. See United States v. Trenton, 67 Fed. Appx. 932 (7th Cir. 2003).
Trenton argues that his sentence should be vacated, set aside, or corrected because both trial and appellate counsel were ineffective, and he was the victim of prosecutorial misconduct and vindictive prosecution. In his supplemental filings (Docs. 4, 5), he also argues that his conviction is invalid in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Title 28, United States Code, Section 2255 provides that "[a] prisoner in custody under sentence of the court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." Thus, collateral relief is available to Trenton only if any legal error in his conviction is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of ...