The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
Before the Court is the Motion to Vacate, Set Aside, or Correct Sentence filed by Petitioner, Ferrogger Watkins, on May 18, 2006. For the reasons set forth below, the Motion is DENIED.
On August 3, 2004, Petitioner, Ferrogger Watkins, was convicted by a jury of possession with the intent to distribute 25.2 grams of cocaine and possession with the intent to distribute 7.3 grams of cocaine base (crack). He was sentenced on February 15, 2005, to 120 months incarceration on both counts to run concurrently, and 6 months and 8 months of supervised release, respectively, to run concurrently.
Petitioner appealed his sentence and alleged that "in order for the judge to sentence him to a mandatory sentence based on a prior conviction, that prior conviction must be charged, submitted to the jury, and proven beyond a reasonable doubt." (Respondent's Ex. 2 p. 3). The Seventh Circuit Court of Appeals summarily affirmed his sentence and conviction on June 27, 2005. (Resp. Ex. 3).
Petitioner's present motion concerns the difference between cocaine base and crack cocaine and the impact on his sentence. He alleges that counsel was ineffective in failing to argue at sentencing that the substance Petitioner possessed was cocaine base and not crack cocaine and that it was not proved that Petitioner possessed crack cocaine.*fn1 He states that had counsel been effective, he would have been sentenced to a shorter jail term. Petitioner further argues that counsel was ineffective for failing to argue that there is a disparate impact in sentences for crack cocaine and cocaine base, that his criminal history was over-represented, and for failing to make an argument with respect to the finding of a prior conviction. Finally, Petitioner argues that the imposition of a term of supervised release violates the double jeopardy clause of the Fifth Amendment*fn2 and his counsel was ineffective for failing to raise this argument.*fn3
Title 28 U.S.C. § 2255 provides that a sentence may be vacated, set aside, or corrected: 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 . . . .
Relief under § 2255 is "an extraordinary remedy to one who already has had an opportunity for full process." Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006). A hearing is not required if the records "conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255, ¶ 2; Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007); Kafo, 467 F.3d at 1067 (noting that in order for a hearing to be granted, the affidavit that accompanies a § 2255 motion must be a detailed and specific document that constitutes actual proof of the allegations and not merely unsupported assertions). An evidentiary hearing in this matter is unnecessary as the issues can be resolved on the documents provided to the Court.
B. Ineffective Assistance of Counsel
Petitioner's ineffectiveness claims are analyzed under the familiar standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on these claims, Petitioner must show that his counsel's performance was objectively deficient and that this deficient performance prejudiced his defense. Id. at 687. Counsel's performance is deficient if it "is one that falls below an objective standard of reasonableness under prevailing professional norms." Shell v. United States, 448 F.3d 951, 954-955 (7th Cir. 2006). Petitioner bears a "heavy burden" in establishing this first prong because of a strong presumption that counsel's conduct was reasonable. Id. As to the second prong, Petitioner must "affirmatively show prejudice" -- he must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694-695.
Petitioner's first arguments concern the Presentence Report (hereinafter "PSR") and counsel's failure to object to the items contained therein. Petitioner states that counsel was ineffective for failing to challenge the inclusion in the PSR that he possessed crack cocaine (as opposed to other forms of cocaine). He goes on to argue that the government, at trial, failed to prove that the substance was crack cocaine and that, at sentencing, his counsel should have raised this argument.*fn4 To support his contention, Petitioner, in his affidavit attached to his memorandum, states that he learned after trial that there was a defense to the allegation that he possessed crack cocaine. Petitioner offers no clue as to what this defense may be -- he neither articulates the defense in his affidavit nor in his memorandum.
In response, the government points to the jury verdict finding that Petitioner possessed "cocaine base (crack)." It would appear from the guilty verdict, which found Petitioner guilty of possessing crack cocaine,*fn5 that an argument during sentencing that the substance was not crack cocaine would be futile. Counsel cannot be faulted for failing to make an argument that would have no merit. See United States v. Rezin, 322 F.3d 443, 447 (7th Cir. 2003) ("A defendant's lawyer has, it is certainly true, no duty to make a frivolous argument; and there is a tactical reason not to make weak argument. . . ." (emphasis in original)). In this instance, whether the substance was in fact proven to be crack cocaine is not an ...