The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Petitioner Dana R. Perkins' Notice of Out of Time Appeal (d/e 1), in which Petitioner incorporated a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255; his Supplement to Petition for 28 U.S.C. § 2255 (d/e 7); and his Amended Motion 28 U.S.C. § 2255 and Memorandum in Support (d/e 20) (Amended Motion) (the three pleadings are collectively referred to as "Petition"). Perkins was charged on July 10, 2003, with Conspiracy to Manufacture and Distribute Methamphetamine. United States v. Perkins, C.D. Ill. Case No. 03-30059, Indictment (Case No. 03-30059, d/e 1). Perkins signed a Cooperation Agreement with the Government on September 3, 2004, which included a grant of use immunity for information provided by Perkins. Plea Agreement and Stipulation of Facts (Case No. 03-30059, d/e 28) (Plea Agreement), attached Cooperation Agreement. On May 4, 2004, Perkins pleaded guilty to Conspiracy to Manufacture and Deliver Methamphetamine, as set forth in Count 1 of the Indictment. On March 8, 2005, he was sentenced to 210 months imprisonment. Case No. 03-30059, Minute entry entered on March 8, 2005.
Perkins complains in the Petition that his rights were violated because:
(1) the factors used to calculate his sentence were not charged in the Indictment and proven to a jury beyond a reasonable doubt; (2) the factors used to calculate his sentence were based on his immunized statements in violation of his Cooperation Agreement; and (3) his counsel was ineffective throughout the sentencing process. For the reasons set forth below, Perkins' Petition is denied. Perkins waived his right to bring a § 2255 petition as part of his Plea Agreement. Plea Agreement, at 6-7. Even if he did not waive his right to bring this action, he fails to demonstrate that a legal or factual basis exists to support any of his claims.
On July 10, 2003, a grand jury handed down a two-count indictment against Perkins and co-defendant Gregory S. Maynor. Count 1 charged that, from approximately November 2002 until May 2003, Perkins and Maynor conspired to manufacture and distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Indictment, Count 1. Count 1 of the Indictment did not allege a particular quantity of methamphetamine. Count 2 charged Perkins with distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1).
On September 2003, Perkins executed the Cooperation Agreement with the Government. The exact date of the agreement is unclear. The first page of the Cooperation Agreement is dated September 22, 2003, but Perkins' signature is dated September 3, 2003, and his attorney J. Randall Cox's signature is dated September 30, 2003. The Cooperation Agreement stated, in part:
1. The government agrees that no statement made or information provided pursuant to this agreement may be directly introduced as evidence against your client in any criminal case, including sentencing, excepting (1) a prosecution for making a false statement or perjury, and (2) use as impeachment or rebuttal evidence should your client subsequently testify or take a factual position contrary to the information he provides. The government will be free to make indirect, or derivative, use of his statements. This agreement means only that the fact your client made certain incriminating statements pursuant to this agreement may not itself be introduced as evidence against him. . . .
2. In addition, the government agrees that no statement made or information provided pursuant to this agreement may be used indirectly as material evidence on the issue of drug amounts in sentencing your client, subject to the same exceptions of (1) a prosecution for making a false statement or perjury, or (2) use as impeachment or rebuttal evidence should your client subsequently testify or take a factual position contrary to the information he provides. The government will remain free to use drug amount evidence obtained independently of your client's cooperation, and evidence already obtained before this agreement is signed, including but not limited to, reports of previous witness interviews and the complete supporting testimony of those witnesses, without limitation.
Cooperation Agreement, ¶¶ 1-2.
On May 4, 2004, Perkins pleaded guilty to the charge in Count 1 of the Indictment in a hearing before United States Magistrate Judge Byron G. Cudmore. Judge Cudmore entered a Report and Recommendation that the Court accept the Plea. Case No. 03-30059, Minute Entry entered on May 4, 2004. The Court accepted the plea on May 10, 2004. Order entered May 10, 2004 (Case No. 03-30059, d/e 31).
Perkins entered his guilty plea pursuant to a Plea Agreement. Perkins executed the Plea Agreement on May 4, 2004. Plea Agreement, at 17. The Plea Agreement contained a waiver of Perkins' right to file a petition under § 2255, or otherwise collaterally attack his conviction and sentence. The relevant portion of the Plea Agreement stated,
The defendant also understands that he has a right to attack the conviction and/or sentence imposed collaterally on the grounds that it was imposed in violation of the Constitution or laws of the United States; that he received ineffective assistance from his attorney; that the Court was without proper jurisdiction; or that the conviction and/or sentence was otherwise subject to collateral attack. The defendant understands such an attack is usually brought through a motion pursuant to Title 28, United States Code, Section 2255. The defendant and his attorney have reviewed Section 2255, and the defendant understands his rights under the statute. Understanding those rights, and have thoroughly discussed those rights with his attorney, the defendant knowingly and voluntarily waives his right to collaterally attack the conviction and/or sentence. . . .
On January 31, 2005, the Probation Office issued a Second Revised Presentence Investigation Report (PSR) on Perkins. Presentence Investigation Report (Case No. 03-30059, d/e 54). The original report was prepared on August 4, 2004; the first revision was prepared on December 21, 2004. PSR, at 1. In the Second Revised PSR, the Probation Office found that Perkins was accountable for 2.2 kilograms of a mixture or substance containing methamphetamine. PSR, ¶ 101. The Probation Office based this calculation on: (1) a search of Maynor's home on March 20, 2003, during which 54.7 grams of methamphetamine were found in Maynor's trunk; (2) a controlled buy of .3 grams of methamphetamine from Perkins on April 10, 2003; (3) interviews before Perkins signed the Cooperation Agreement on September 3, 2003, with (a) three confidential sources, and (b) other individuals named Jeannette Partain, Ronald Cox, Kelli Adams, Tonya Owen, Cheryl Eskew, Shannon Barnstead, Gregory Miller, Susan Cannady, Roy Gallagher, Robert McKim, Jr.,David Zehnle, and Joel Redman; (4) interviews after September 3, 2003, with (a) a confidential source, and (b) an individual named Tasha Baker; and (5) interviews with co-defendant Maynor that were conducted both before and after September 3, 2003. To be conservative and to avoid the risk of double counting, the Probation Office recommended that Perkins should be held accountable for 500 grams to 1.5 kilograms of a mixture or substance containing methamphetamine. PSR, ¶ 102. The base offense level for this amount of drugs was 32. PSR, ¶ 107; U.S.S.G. § 2D1.1(c)(4).
The Probation Office also recommended that Perkins' offense level be increased by two levels because Perkins possessed a weapon in connection with the offense. PSR, ¶ 109; U.S.S.G. § 2D1.1(b)(1). On April 4, 2003, law enforcement officials stopped Perkins in his vehicle because the vehicle had no registration plates. During the search, officers found an explosive device in the vehicle and a pill that contained .1 gram of methamphetamine. PSR, ¶ 24. Roy Gallagher told law enforcement officials that Perkins owned a .38 revolver. PSR, ¶ 57. Maynor also told officers that he observed Perkins carry a .22 pistol or .22 rifle. PSR, ¶ 68.
The Probation Office also recommended that Perkins' offense level be increased by three levels because Perkins was a manager or supervisor of the conspiracy. PSR, ¶ 111; U.S.S.G. § 3B1.1(b). Maynor again told law enforcement officials that Perkins was in charge of the conspiracy and called all the shots. PSR, ¶ 68.
The resulting offense level was 37. The Probation Office then recommended a three level reduction because Perkins accepted responsibility for his offense, resulting in a final offense level of 34. PSR, ¶¶ 114-17. Perkins was in criminal history category II, resulting in an advisory sentencing range of 168 to 210 months in Zone D of the Guidelines range. PSR, ¶166. The statutory maximum for Perkins was twenty years. 21 U.S.C. § 841(b)(1)(C); PSR, ¶ 165.
On August 18, 2004, attorney Cox sent the Probation Office a letter setting forth his objections to the original report. Perkins objected to the drug quantity and the enhancements for possession of a weapon and the leadership role because those facts had not been admitted by Perkins or proven to a jury beyond a reasonable doubt. Amended Motion, Exhibit 4, Letter dated August 18, 2004 (August 18 Letter). At the time that the August 18 Letter was written, the Seventh Circuit had decided that such matters had to be admitted or proven to a jury beyond a reasonable doubt. United States v. Booker, 375 F.3d 508 (7th Cir. 2004), rev'd, 543 U.S. 220 (2005). The August 18 Letter took the position that, because these matters had not been proven beyond a reasonable doubt, the correct offense level was 12, which was the lowest offense level for being held accountable for any amount of methamphetamine. U.S.S.G. § 2D1.1(c)(14). The August 18 Letter asserted that, after the two point ...