The opinion of the court was delivered by: Murphy, District Judge
On May 1, 2006, Darron J. Murphy, Sr. ("Murphy") filed the instant motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (Doc. 1) and a memorandum in support of his motion (Doc. 2). Murphy was later granted leave to supplement his motion (see Doc. 4). The Government responded to the motion on January 12, 2007 (Doc. 11), and Murphy filed a reply on February 12, 2007 (Doc. 17).
Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts, If [a 2255] motion has not been dismissed at a previous stage in the proceeding, the judge, after the answer is filed and any transcripts or records of prior court actions in the matter are in his possession, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates.
The Seventh Circuit has noted that "[n]o hearing is required in a section 2255 proceeding if the motion raises no cognizable claim, if the allegations in the motion are unreasonably vague, conclusory, or incredible, or if the factual matters raised by the motion may be resolved on the record before the district court." Oliver v. United States, 961 F.2d 1339, 1343 n.5 (7th Cir. 1992), citing United States v. Frye, 738 F.2d 196 (7th Cir. 1984). In this case, the Court finds that the factual matters raised by the motion may be resolved on the record, and the motion raises no cognizable claim. Accordingly, the Court will resolve the motion without a hearing.
The Government's lengthy and thorough response sets forth the procedural and factual background underlying the conviction and sentence in this case. This Court is familiar with the background and will repeat the facts only as necessary.
In July 2003, a federal grand jury returned a five-count indictment against Murphy and his co-defendant Jennifer Baker. Murphy was charged with tampering with a witness by using physical force with the intent to influence the witness and her testimony (Count 1), using a firearm during a crime of violence (Count 2), being a felon in possession of a firearm (Count 3), possessing with intent to distribute in excess of 5 grams of crack cocaine (Count 4), and conspiracy to distribute and possess with intent to distribute in excess of 5 grams of crack cocaine (Count 5).
The undersigned presided over the jury trial of this matter from October 21-23, 2003. Both defendants moved for a Judgment of Acquittal, on which this court reserved ruling. The jury found both Murphy and Baker guilty on all counts. The Court then instructed the parties to file memoranda on the motions for Judgment of Acquittal. On March 9, 2004, this Court granted the motion of acquittal as to Defendant Baker on Counts 1 and 2 only. The motion was denied in all respects as to Murphy (see Doc. 59).
This Court subsequently sentenced Murphy to 235 months imprisonment and 8 years of supervised release. Murphy appealed, and the Seventh Circuit affirmed the conviction and sentence, see United States v. Murphy, 406 F.3d 857 (7th Cir. 2005); it also ordered Murphy to tell the Court within 14 days whether he wanted it to issue a limited remand to this Court, per United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). Murphy declined the limited remand.
Murphy argues that his sentence should be vacated, set aside, or corrected because: (1) his trial counsel was ineffective in failing to object to the charged conspiracy's existence; (2) his trial counsel was ineffective in failing to request a "buyer/seller" instruction; (3) his trial and later his appellate counsel were ineffective in failing to challenge this Court's decision to instruct the jury on brandishing a weapon, pursuant to 18 U.S.C. Section 924(c); (4) his trial and appellate counsel were ineffective for failing to object to this Court's imposition of the enhancement for using a firearm under 2D1.1(b)(1); and (5) this Court erred in failing to adequately consider the statutory sentencing factors. (See Doc. 1.)
Title 28, United States Code, Section 2255 provides that "[a] prisoner in custody under sentence of the court established by Act of Congress claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence." Thus, collateral relief is available to Murphy only if any legal error in his conviction is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Oliver, 961 F.2d at 1341, quoting Haase v. United States, 800 F.2d 123, 126 (7th Cir. 1986). In other words, a Section 2255 motion does not serve as a substitute for a direct appeal.
There are three types of issues that cannot be raised in a motion brought pursuant to Section 2255: (1) issues that were raised on direct appeal, ...