The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Petitioner Wade Hemphill's motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 is before this Court. For the following reasons, the motion is DENIED.
Hemphill, along with 13 individuals associated with the Gangster Disciples street gang, was charged in a 36-count indictment for offenses related to a cocaine-distribution ring that operated from 1995 to July 1999. See United States v. Jackson et al., No. 99 CR 545 (N.D. Ill. 1999). Hemphill, in particular, had been observed in November 1998 receiving 373 grams of crack cocaine, and he had been caught on a wiretap discussing the drug operation with another coconspirator. The government charged Hemphill with one count of conspiring to distribute cocaine and one count of possessing with the intent to distribute 373.1 grams of a mixture containing cocaine base. See 21 U.S.C. § 841(a)(1), 846. (R. 44 at 1-4, 23.)
Attorney Michael Mann was appointed to represent Hemphill. Given the substantial evidence of Hemphill's involvement in the drug operation, Mann attempted to negotiate a favorable plea deal with the government. Hemphill later testified that he told Mann that he would "really prefer to take a plea if I get my one/third [sentencing reduction] like was said," but that the government had declined to offer him "one/third off." When asked what he told Mann he wanted to do at that point, Hemphill testified, "I told him I'm going to trial." (Posttrial Hr'g Tr. 10/16/2000 11-12.) At Hemphill's suggestion, they developed a defense of coercion. Attorney Mann prepared that defense-somewhat deficiently, as was later discovered-but continued to pursue a favorable plea deal up until the day of trial. (Posttrial Hr'g Tr. 10/11/2000 9-10.)
Hemphill testified at his jury trial. He admitted that he had participated in drug deals, but he testified that he had been threatened, sometimes through beatings (once by an associate named Vernon Everett and three others, and another time by Alex Kinsey and Quincy Jackson, both co-defendants). He further testified that Everett, Jackson, and Kinsey had on numerous occasions threatened him and his family with death if he did not agree to sell drugs for them. According to Hemphill, he did not seek help from law enforcement because he believed the police were being paid by the men whom he said had threatened him. Hemphill offered no evidence to corroborate his testimony.
On June 1, 2000, a jury returned a guilty verdict on both counts. Attorney Mann withdrew his representation, and Kent Carlson was appointed to represent Hemphill in posttrial proceedings. On June 6, 2000, Hemphill filed a motion for a new trial. He argued, among other things, that Mann had rendered ineffective assistance by failing to interview witnesses-including Everett, two of Hemphill's nieces, Pierre Stitts, and Terrell Webster-who would have testified in support of Hemphill's coercion defense. Following an evidentiary hearing, this court initially granted the motion for a new trial, finding that Mann's failure to call Everett as a witness was objectively unreasonable. Upon reconsideration, however, the court denied the motion because Hemphill had not shown that he was prejudiced by his attorney's performance.
Carlson continued to represent Hemphill at sentencing, and he lodged various objections to the probation officer's presentence investigation report. As relevant here, Carlson argued that, absent specific findings by the jury as to drug type and quantity, the court could not sentence Hemphill to more than 20 years' imprisonment without violating the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). (R. 287 at 1-6; Cont. Sent'g Tr. 130-33.) This court rejected the argument, noting that the indictment specifically alleged that Hemphill possessed with intent to distribute 373.1 grams of cocaine base, and that the jury's finding of guilt on that count triggered a statutory maximum sentence of life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii). (Cont. Sent'g Tr. 139.) Carlson also contested, as relevant here, the probation officer's recommendation that Hemphill receive a 2-level adjustment for possessing a gun during the drug conspiracy. See U.S.S.G. § 2D1.1(b)(1). (R. 287 at 6-7.) The court again disagreed, citing Hemphill's confession that he possessed a gun while he was involved in the conspiracy. (Cont. Sent'g Tr. 149-50). On December 6, 2001, the court sentenced Hemphill to concurrent terms of 30 years' imprisonment and 5 years' supervised release, along with monetary penalties.
Hemphill retained a new attorney, David Rodriguez, for his appeal to the Seventh Circuit. There he argued that (1) trial-counsel Mann rendered ineffective assistance, and (2) the court erred at sentencing by attributing 1.5-kilograms of crack to Hemphill based on Kinsey's testimony. The Seventh Circuit agreed with Hemphill that, in failing to interview Everett and Stitts, Mann's performance was deficient. United States v. Hemphill, 86 Fed. App'x 985, 988-89 (7th Cir. 2004). But the appellate court concluded that Hemphill was not prejudiced by his attorney's omissions because both Hemphill's and the potential witnesses' testimony were not credible. Moreover, continued the panel, Hemphill did not show that the threat he faced was "immediate" and that he had no reasonable opportunity to avoid it. Id. at 989. Finally, the appellate court rejected Hemphill's sentencing argument after determining that 1.5 kilograms of crack was a reasonable estimate based on Kinsey's testimony. Id. at 990. Hemphill sought rehearing, which was denied.
Rodriguez then filed a petition for a writ of certiorari to the Supreme Court, arguing that the Court should evaluate whether the government's burden of disproving a coercion defense should have been considered in the appellate court's prejudice analysis under Strickland v. Washington, 466 U.S. 668 (1984). The petition was denied on October 4, 2004. Less than a year later, on August 15, 2005, this court received Hemphill's pro se § 2255 motion.
In his motion, Hemphill identifies ostensibly two grounds for relief. First, he contends that appellate-attorney Rodriguez was deficient for failing to argue that posttrial-attorney Carlson was ineffective. Second, he argues that Rodriguez also was ineffective for failing to argue in his petition for a writ of certiorari that Hemphill's sentence violated the rule announced in Blakely v. Washington, 542 U.S. 296 (2004), which was decided a month before he filed the petition.
Before the government filed its response, on November 2, 2005, this court received Hemphill's motion to supplement his § 2255 motion with an additional ground: that Rodriguez also was ineffective for failing to inform him that he could submit a pro se petition for a writ of certiorari to the Supreme Court, where he would have raised his Blakely claim. The government then filed a response, and Hemphill filed a reply.
Federal prisoners may challenge their detention if their conviction or sentence is based on an error that is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal citation and quotation marks omitted); see 28 U.S.C. § 2255. If this court determines that such a defect exists in the judgment or sentence, it "shall vacate and set the judgment aside and shall discharge ...