The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Archie Dunklin, Jr.'s ("Dunklin") motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) and its memoranda (Docs. 2 & 3). The government has responded to the motion (Doc. 10).
In March 2004, Dunklin was indicted on one count of conspiring to distribute and possess with intent 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). In December 2004, a superseding indictment was returned, naming Reginald Walls as a coconspirator but adding no new charges against Dunklin.
Dunklin was represented at trial by attorney John Abell ("Abell"). At trial, the government introduced, among other evidence, two audio tape recordings of conversations between Dunklin and Charles Shye, who was working as a government confidential informant at the time. In the recorded conversations, Shye purchased crack cocaine from Dunklin. Shye did not testify at trial and was not subject to cross-examination by Abell. In addition, Reginald Walls and Sedric Anderson testified against Dunklin regarding his drug activities. On March 23, 2005, a jury found Dunklin guilty of the crime charged and made a specific finding that Dunklin conspired to distribute more than 50 grams of crack cocaine.
On June 28, 2005, the Court held a sentencing hearing. Dunklin did not object to the Presentence Investigation Report ("PSR") prepared by the Probation Office. However, in response to the government's objection that his relevant conduct should be higher than that recommended in the PSR, Dunklin argued that Walls and Anderson were not reliable because their testimony was not corroborated. In spite of Dunklin's argument, the Court found Walls and Anderson credible and, relying on their trial testimony, found by a preponderance of the evidence that Dunklin's relevant conduct was 288 grams of crack cocaine, in the category of at least 150 grams but less than 500 grams of crack cocaine, which under United States Sentencing Guideline Manual*fn1 ("U.S.S.G.") § 2D1.1 yielded a base offense level of 34. The Court further found that Dunklin was a career offender under U.S.S.G. § 4B1.1 based on prior drug or violent felony convictions, which raised his offense level to 37. Considering Dunklin's criminal history category of VI, established by his career offender status under U.S.S.G. § 4B1.1, this yielded a sentencing range of 360 months to life in prison. The Court sentenced Dunklin to serve 360 months in prison, within the statutory range of 20 years to life established by Dunklin's conviction of conspiring to distribute more than 50 grams of crack cocaine after having been convicted for a prior felony drug offense. See 21 U.S.C. §§ 841(b)(1)(A) & 851.
Dunklin appealed to the Seventh Circuit Court of Appeals arguing, among other things, that the admission of the audio tape recordings violated his rights under the Confrontation Clause to cross-examine witnesses against him. See Crawford v. Washington, 541 U.S. 36 (2004). Crawford held that a criminal defendant's Sixth Amendment Confrontation Clause rights are violated where testimonial hearsay is admitted against him unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 68. The Court of Appeals held that neither Dunklin's nor Shye's recorded statements were hearsay because they were not offered for the truth, and Dunklin's statements were not testimonial in nature. United States v. Tolliver,454 F.3d 660, 665-66 (7th Cir. 2006), cert. denied, 127 S.Ct. 1019 (2007). Consequently, their admission did not violate the Confrontation Clause or the principles announced in Crawford. Id.
The Court of Appeals also addressed the argument that the audio tape recordings were not properly authenticated and rejected it, noting that authentication by the law enforcement officer who supervised the controlled buys and the recordings and was familiar with Dunklin's and Shye's voices was sufficient. Id. at 666 n. 4. The Court of Appeals affirmed Dunklin's conviction and sentence on July 19, 2006, and issued its mandate on August 10, 2006. Dunklin filed a petition for a writ of certiorari from the Supreme Court, which it denied on January 8, 2007. Dunklin v. United States, 127 S.Ct. 1019 (2007).
Dunklin filed the pending § 2255 on August 27, 2007, within the one-year limitations period imposed in § 2255. In his § 2255 motion, Dunklin asks the Court to vacate his sentence because Abell was constitutionally ineffective in violation of his Sixth Amendment right to effective assistance of counsel in the following ways: (1) he failed to object to the admission of audio recordings used against Dunklin at trial in the absence of testimony from the recorder of the conversation, (2) failed to seek severance from co-defendant John Tolliver on the grounds that the two defendants had conflicting defenses, (3) failed to call as a witness and examine Shye in light of the fact that his voice was recorded on the audio recording, and (4) failed to properly challenge the relevant conduct amount found at sentencing.
In a supplemental memorandum filed September 10, 2007, Dunklin adds the additional charge that (5) Abell was ineffective for failing to ask for an instruction informing the jury that there can be no criminal conspiracy between the defendant and government agents. See Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965).
In response, the government argues that there was no constitutionally ineffective assistance of counsel.
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 ...