The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner John S. Penrod's ("Penrod") motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The government has responded to the motion (Doc. 5).
In March 2003, Penrod was indicted on one count of conspiring to distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) (count 1) and four counts of distributing less than 5 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (counts 17, 18, 19 & 20). Penrod was represented at the trial level by attorney G. Ethan Skaggs ("Skaggs").
At trial, Penrod's co-defendants Robert Barber, Lawrence Bryant and James Suggs, all of whom had pled guilty prior to trial, testified against Penrod. Penrod also took the stand in his own defense. Nevertheless, on August 20, 2003, a jury found Penrod guilty of all four charges and made a specific finding that Penrod conspired to distribute more than 50 grams of crack cocaine.
On January 30, 2004, the Court held a sentencing hearing at which Penrod objected to the relevant conduct finding recommended in the Presentence Investigation Report. The Court, relying on the evidence presented at trial, found by a preponderance of the evidence that Penrod's relevant conduct was at least 500 grams but less than 1.5 kilograms of crack cocaine, which under United States Sentencing Guideline Manual*fn1 ("U.S.S.G.") § 2D1.1 yielded a base offense level of 36. The Court noted that the testimony of Robert Barber alone, who the Court found to be a credible witness regarding relevant conduct amounts, supported such a finding. The Court further found that Penrod had testified falsely at trial and therefore applied a two-point enhancement under U.S.S.G. § 3C1.1 for obstruction of justice. The Court declined to impose a two-point enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon during the commission of the crime, and declined to allow reductions under U.S.S.G. § 3B1.2 based on a minor role in the offense or under U.S.S.G. § 3E1.1 for acceptance of responsibility, yielding a total offense level of 38. The Court further found that Penrod had accumulated 13 criminal history points, placing him into criminal history category VI. These findings yielded a guideline sentencing range of 360 months to life for count 1. Considering the statutory maximum sentence of 20 years for counts 17 through 20 as set forth in § 841(b)(1)(C), the sentencing range for those counts was 240 months. The Court sentenced Penrod to serve 384 months in prison on count 1 and 240 months in prison on each of counts 17 through 20, all sentences to be served concurrently.
Penrod appealed to the Seventh Circuit Court of Appeals, which issued a limited remand pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir.), cert. denied, 546 U.S. 849 (2005), for the Court to determine whether it would have issued the same sentencing knowing that the Sentencing Guidelines were not mandatory. The Court found that it would, and Penrod's appeal continued. The Court of Appeals affirmed Penrod's conviction and sentence on October 3, 2005, and issued its mandate on October 25, 2005. United States v. Penrod,No. 04-1431, 2005 WL 2417069 (7th Cir. Oct. 3, 2005) (unpublished decision). Penrod did not file a petition for a writ of certiorari from the Supreme Court.
Penrod placed the pending § 2255 petition into the prison mail system to be sent to the Court for filing on December 28, 2006. Thus, under the mailbox rule of Houston v. Lack, 487 U.S. 266, 276 (1988), his petition satisfied the one-year limitations period imposed in § 2255.
In his § 2255 motion, Penrod asks the Court to vacate his conviction and sentence because his trial counsel was constitutionally ineffective in violation of his Sixth Amendment right to effective assistance of counsel. In response, the government argues that Skaggs was not deficient in his performance and that Penrod did not suffer any prejudice from Skaggs's performance.
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). "Relief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255.
The Court finds that Penrod has not presented any evidence or argument meriting either a hearing or relief under § 2255. Penrod asks the Court to vacate his conviction because his counsel was constitutionally ineffective in failing to adequately challenge the witnesses whose testimony provided the basis for the Court's relevant conduct finding. ...