The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
On March 17, 2004, a jury found Tyler Sanders guilty of distribution of over fifty grams of cocaine base in the form of crack cocaine. The Court sentenced Sanders to twenty years imprisonment. The court of appeals affirmed the judgment. Sanders has filed a pro se motion pursuant to 28 U.S.C. § 2255 challenging his conviction and sentence. For the following reasons, the Court denies Sanders' motion.
On July 30, 2003, Lisa Mahone, a government informant, gave Sanders $1,250 in exchange for a quantity of crack cocaine. Trial Tr. vol. 2 at 74. Mahone obtained the money from the FBI. Id. at 66. A surveillance team of FBI agents witnessed the exchange, which was also recorded by a device placed on Mahone. Id. at 18-23. On August 6, 2003, federal agents arrested Sanders for selling a controlled substance. Id. vol. 1 at 13. After his arrest, Sanders signed a written statement in which he admitted to selling "crack cocaine in amounts that range from 63 grams to 126 grams." Id. vol. 2 at 117. In his post-arrest statement, Sanders also admitted to selling sixty-three grams of crack cocaine to Mahone. Id. Sanders was charged with one count of distribution of a controlled substance, namely, in excess of 50 grams of a mixture and substance containing cocaine base, commonly known as crack cocaine, in violation of 21 U.S.C. § 841(a)(1).
At trial, Mahone testified that on July 30, 2003, she gave Sanders $1,250 in exchange for crack cocaine. Id. vol. 2 at 74. Agent Michael Culloton testified that as a member of the FBI surveillance team, he placed a recording device on Mahone and then witnessed the drug exchange between Sanders and Mahone from approximately one block away. Id. at 18-23. The parties stipulated that an expert forensic chemist would testify that the substance Sanders sold to Mahone was approximately 62.7 grams of a mixture containing cocaine base, commonly known as crack cocaine. Gov't Resp., Ex. 5.
The government also offered into evidence multiple recordings of Sanders' conversations with Mahone. Trial Tr. vol. 2 at 144. The parties stipulated that law enforcement officers would testify that the recordings accurately captured the conversations. Govt's Resp., Ex. 5. In one of the conversations, Mahone asked Sanders if she could buy crack cocaine from him. Id. vol. 1 at 42 & vol. 2 at 52. The government also offered in evidence subsequent conversations in which Mahone informed Sanders she had the money ready for the drugs and Sanders told her where to meet him for the exchange. Id. vol. 2 at 62-68. The government also introduced evidence regarding Sanders' post-arrest statement to law enforcement.
The jury found Sanders guilty as charged. On June 23, 2004, the Court sentenced Sanders to a term of twenty years in prison, the statutory minimum for a defendant with a prior felony drug conviction who is found guilty of distributing at least fifty grams of crack cocaine. Tr. vol. 3 at 6-21. On appeal, Sanders challenged the Court's imposition of the mandatory minimum sentence for crack cocaine distribution, arguing the Court could not discern from the verdict form whether the jury concluded he had distributed crack cocaine or some other form of cocaine base. United States v. Sanders, No. 04-2792, 2005 WL 2450233, at *1 (7th Cir. Oct. 5, 2005). The Seventh Circuit affirmed the judgment on October 5, 2005. It concluded that Sanders' argument was misplaced, finding that the jury's verdict had played "no role in the sentencing" because under Apprendi v. New Jersey, 530 U.S. 466 (2000), jury verdicts are significant only for statutory maximum sentences, not statutory minimums. Id., at *2. The court went on to find that at sentencing, this Court had clearly found that the drug involved was crack cocaine, not some other form of cocaine base. Id., at *3. The court noted that Sanders had not argued that this Court had erred in making that finding, and it stated that any such argument would have been lacking in merit, as the parties' trial stipulation that a chemist would identify the substance as "cocaine base, commonly known as crack," Mahone's testimony that Sanders had sold her crack, and Sanders' admission to the police that he had sold crack provided ample support for the Court's finding. Id. Finally, the court noted that Sanders had presented no reason to believe that the substance was some form of cocaine base other than crack. Id.
On January 17, 2007, Sanders filed a pro se motion ("2255 Mot.") with this Court under 28 U.S.C. § 2255. On March 30, 2007, Sanders filed a supplemental memorandum ("2255 Mem.") in support of his petition. The government thereafter responded to Sanders' motion, and Sanders replied to the government's response.
Sanders asks the Court to vacate his conviction and sentence because he was entrapped, arrested without cause, and coerced to confess; the investigating agents' surveillance was faulty; the government suborned perjury from Mahone, and her testimony included hearsay; the government failed to disclose exculpatory, impeaching, and mitigating evidence; the government manipulated and misused the transcripts of the recorded conversations; the drug amounts attributed to him were unsupported, and the attribution violated Apprendi v. New Jersey, 530 U.S. 466 (2000); the sentence was improperly based on estimated amounts, was disproportionate, and was imposed in violation of Apprendi; and he was denied his Sixth Amendment right to the effective assistance of trial and appellate counsel.
The government argues that Sanders' claims are procedurally barred because they are untimely and he failed to raise them on direct appeal. The government also has addressed Sanders' claims on the merits.
1. Statute of Limitations
Sanders' section 2255 motion was received by the Clerk of this Court on January 17, 2007. Because Sanders is a pro se prisoner, however, the motion is deemed to have been filed on the date he provided it to prison authorities to be sent to the Court. Cf. Rutledge v. United States, 230 F.3d 1041, 1052-52 (7th Cir. 2000) (suggesting that "mailbox rule" applies to section 2255 motions). In the certificate of service attached to Sanders' motion, he stated that he provided the motion to the authorities at FCI Milan on January 4, 2007. The Court has no reason to doubt the veracity of Sanders' statement.
A one year period of limitations applies to motions under section 2255. The period starts to run on the latest of several dates -- in this case, "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255. For a defendant who files a direct appeal but does not thereafter file a petition for certiorari in the United States Supreme Court, the clock starts to run when the time to petition for certiorari expires, which is ninety days after the judgment on appeal is entered. See Clay v. United States, 537 U.S. 522, 532 (2003); Sup. Ct. R. 13.1. In its response to Sanders' section 2255 motion, the government stated that Sanders had not petitioned for certiorari and that as a result, the judgment in his case became final on January 3, 2006, ninety days after the court of appeals entered judgment affirming the conviction and sentence. The government therefore argued that even if the Court accepted Sanders' statement that he provided his section 2255 motion to the authorities on January 4, 2007, Sanders had filed the section 2255 motion one day late.
The government did not investigate its limitations defense sufficiently before making this argument to the Court. On its own, the Court examined the docket in Sanders' appeal -- a fairly simple and elementary step -- and saw that the docket reflected that the Seventh Circuit Clerk received, on January 18, 2006, a notice from the Supreme Court indicating that Sanders had filed a petition for certiorari and, on February 27, 2006, a notice stating that the Supreme Court had denied that petition. See United States v. Sanders, No. 04-2792, docket entries for 1/18/06 and 2/27/06. Upon finding this information, this the Court entered an order stating that the Court has examined the docket for movant's direct appeal (7th Circuit No. 04-2792) and has ascertained that after his conviction was affirmed, movant filed a petition for certiorari, which the government failed to disclose to the court. The government is directed to obtain a copy of that petition forthwith and to submit it to the court, by no later than 7/20/07.
The government thereafter obtained and submitted a copy of the petition, which on its final page bears the date January 3, 2006 -- the due date for Sanders to file a petition for certiorari. It is reasonable to infer that was the date on which Sanders' appellate counsel mailed the petition, which is considered the filing date under the Supreme Court's rules. See Sup. Ct. R. 29.2.
Under section 2255, the one year limitation period did not start to run until the Supreme Court denied Sanders' petition, which appears to have been sometime in mid to late February 2006. For this reason, the Court concludes that Sanders' motion was timely filed ...