The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Petitioner Dennis Herrmann's Motion to Set Aside, Vacate or Correct Sentence pursuant to 28 U.S.C. § 2255 (d/e 1) (Petition). Herrmann raises several challenges to his conviction and sentence. For the reasons set forth below, the Court determines that an issue exists regarding whether Herrmann was denied effective assistance of counsel by his attorney's alleged refusal to file a notice of appeal at his direction. The remaining challenges to his conviction and sentence lack merit and are denied.
On October 16, 2003, Greene County, Illinois, Deputy Sheriff Cale Hoesman swore out an Application and Affidavit for a Warrant to search Herrmann's residence located at R.R.1 Box 53A, Hillview, Illinois. The Affidavit indicated that Herrmann and others had been manufacturing, or "cooking," methamphetamine in a shed behind his house. U.S. v. Herrmann, Docket No. 04-30014, Presentence Investigation Report (PSR) (Criminal d/e 46), ¶¶ 15-18. The Clerk is directed to file a copy of the PSR under seal in this case. The Warrant was issued.
Law enforcement officials executed the Warrant at Herrmann's residence on October 16, 2003. Herrmann's wife, Christy Herrmann, met the officers when they arrived at the residence. Officers found Petitioner Herrmann, James Carter and Nicholas Coates in a shed behind the residence. Aaron Herrmann, Deborah Sinks, Ron Mielke, Melissa Talkington, and an infant, Alexis Coates, were found inside the residence. Carter took a plastic bag out of his pants and gave it to the officers. Carter told the officers that the bag contained methamphetamine that he and the Petitioner had just finished making. The Illinois State Police Forensic Science Laboratory determined that the bag contained 13.9 grams of a mixture or substance containing methamphetamine. Carter led the officers to a tank buried in the ground which was used to dispose of the waste from manufacturing methamphetamine. Id., ¶ 7.
The officers searched the property and found two SKS rifles. One of the rifles had a 20 round magazine attached. The officers also found a 30 round magazine with the rifles. Id., ¶ 8. The officers also found an additional 26.3 grams of a mixture or substance containing methamphetamine on the property. Id., ¶ 9. In the house, the officers found a Winchester Model 94, 30-30 gun, a New England Firearms .12 gauge shotgun, 46 rounds of 30-30 ammunition, 104 rounds of 12-gauge shotgun shells, and numerous other rounds of ammunition and shotgun shells. Id., ¶ 13. Throughout the property, the officers found drug paraphernalia, cannabis, and materials used to manufacture methamphetamine. Id., ¶¶ 9-12, 14.
The Drug Enforcement Agency (DEA) contracted with a company to remove from the property the hazardous waste left from methamphetamine manufacturing. The hazardous waste included ether, soil, camp fuel, sulfuric acid, waste water containing ammonium hydroxide, and empty cylinders that had been used to hold anhydrous ammonia. Id., ¶ 14.
On October 21, 2003, Herrmann was interviewed by law enforcement officers. Herrmann admitted cooking methamphetamine at his residence for the last six months. He said that he cooked methamphetamine two to three times a week during that six-month period. He said that each cook produced about two ounces of methamphetamine. United States Response to Petitioner's Supplemental Motion to Vacate Set Aside or Correct a Sentence and Petitioner's Reply to United States' Response and Motion to Dismiss Petition (d/e 10) (Government Response), Exhibit 2, Affidavit of Gregory Harris (Harris Affidavit), attached Interview Report.
On February 10, 2004, Herrmann was charged with manufacturing a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 1), and with possessing a firearm in furtherance of the drug trafficking crime in violation 18 U.S.C. § 924(c) (Count 2). The Court found Herrmann to be indigent and appointed counsel for him. On February 11, 2004, Herrmann signed a Letter Agreement with the Government under which the Government gave Herrmann a conditional grant of use immunity for any information he gave the Government after the date of the Agreement. Government Response, Exhibit 4, Cooperation Plea Agreement and Stipulation of Facts (Plea Agreement), attached Cooperation and Conditional Grant of Immunity Letter (Cooperation Letter).
On April 1, 2004, Herrmann's counsel asked the Court to conduct a psychiatric examination of Herrmann to determine his competence. The Court allowed the request. Herrmann was then placed in the custody of the Federal Bureau Prisons (BOP) for the examination. A Forensic Report was issued by the BOP on June 30, 2004. Government Response, Exhibit 1, Forensic Report. The Forensic Report stated that Herrmann was competent to stand trial. The Forensic Report stated that Herrmann had an IQ of 82, "placing him in the below average to borderline range of intellectual functioning." Id., at 5. The Forensic Report also stated that Herrmann read at the fourth grade level. Id.
The Forensic Report stated that Herrmann was in the "borderline to extremely low range of memory functioning." Id. Herrmann, however, demonstrated "reasonable memory for past personal experiences, life events, and issues relating to his legal case." Id. The Forensic Report stated:
[W]hen asked about key evidence in his own case, he was able to identify evidence against him, such as co-defendant statements, and his own report to police. He was also able to confront evidence against him that he had reason to believe did not apply to his legal case. . . . Mr. Herrmann demonstrated significantly improved reasoning and understanding when dealing with legal issues pertaining to his case. He also appeared to be more adept at discussing issues that he had first hand experience with, such as his discussions with his attorney, or past court appearances.
Id., at 6. The Forensic Report concluded that Herrmann had borderline intellectual functioning, but was competent to understand the nature of the legal proceedings and to assist his attorney in his defense. Id., at 8-9.
On March 31, 2005, Herrmann signed a Plea Agreement with the Government. In the Plea Agreement, Herrmann agreed to waive his right to appeal as long as the sentence was "within the maximum provided in the statutes of conviction." Plea Agreement, ¶ 11. Herrmann also waived his right to file a § 2255 petition. Id., ¶ 12. The parties estimated that Herrmann would probably have a base offense level of 30 under the United States Sentencing Guidelines (Guidelines). Id., ¶ 14(c). The Government agreed: (1) that Herrmann was entitled to the reduction in his offense level for acceptance of responsibility, (2) to recommend a sentence at the low end of the Sentencing Guideline Range, and (3) to disclose to the Court the nature and extent of Herrmann's cooperation. Id., ¶¶ 14, 21, 22. The Government also reserved the right to make a motion for a downward departure from Herrmann's Sentencing Range under the Guidelines, and any statutory minimum, if the Government determined that Herrmann provided substantial assistance. Id., ¶ 16. See 18 U.S.C. § 3553(e), U.S.S.G. § 5K1.1.
The Plea Agreement also contained a stipulation of the factual basis for Herrmann's guilty plea. Plea Agreement, ¶ 23. The parties stipulated that, when law enforcement officials executed the warrant on October 16, 2003, the Defendant and others had just manufactured at least 40.2 grams of methamphetamine in the shed behind Herrmann's residence. The parties also stipulated that Herrmann was in the shed at the time the officers searched the property and that the two SKS semi-automatic rifles with ammunition were also in the shed at the time. The stipulation also recited that Herrmann admitted in the October 21, 2003, interview that he had manufactured methamphetamine in the shed behind his residence at least two to three times a week for the preceding six months and that he produced at least 2 ounces of methamphetamine each time. Id.
Herrmann then pleaded guilty to both charges on April 1, 2005. U.S. v. Herrmann, Docket No. 04-30014, Transcript of Proceedings on April 5, 2005 (Criminal d/e 50) (Transcript). The Court directs the Clerk to file a copy of the Transcript of this case.
The United States Probation Office then prepared the PSR. The PSR stated that Herrmann was responsible for 409.62 grams of a mixture or substance containing methamphetamine. PSR, ¶ 52. This finding was based on the methamphetamine found on October 16, 2003, by law enforcement officials and on the statements of witnesses and co-defendants. Id., ¶¶ 7, 9, 29, 31, 40, 41, 42, 43, 44, 45. As a result, Herrmann had a base offense level of 30. Id., 67. The PSR stated that Herrmann's statements, both before and after signing the cooperation agreement, were not used to determine the amount of methamphetamine for which he should be held accountable. Id., ¶ 28. The statements on which the Probation Office relied in ...