The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on Petitioner Kenneth Lockard's(Lockard) Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody. The Government has responded (Doc. 11) and Lockard has replied (Doc. 12). For the followings reasons, the Court DENIES the Motion.
On October 7, 2003, a federal grand jury returned a fifth superseding indictment against Lockard, Rick Green, Michael Easton, and Donita Pantry. Count 1 charged all four defendants with conspiracy to manufacture and distribute fifty grams or more of a mixture and substance containing methamphetamine. On February 20, 2004, represented by attorney Edward Veltman, Lockard entered an open plea of guilty to Count 1 of the fifth superseding indictment. At the time of the plea, Lockard and the Government made the Court aware that there was a dispute as to the quantity of drugs involved in the conspiracy. Lockard admitted that the amount of drugs involved exceeded fifty grams of a mixture and substance containing methamphetamine, but disputed Government's contention that the amount involved exceeded 500 grams. The Court advised Lockard that the statutory range that could be imposed on a plea of guilty to manufacture and distribute more than fifty grams of a mixture and substance containing methamphetamine was between five and forty years imprisonment. Lockard indicated that he understood.
The United States Probation Office prepared a Presentence Report ("PSR") with respect to Lockard. Lockard filed objections to the PSR and the government responded. On May 20, 2004, the Court, after a hearing, sentenced Lockard to 240 months imprisonment. Lockard, represented by attorney Richard H. Parsons, appealed, contending that the Court erred in treating the Guideline range as mandatory rather than advisory and that the Court erred in finding that Lockard had used a minor when he committed the offense. The Seventh Circuit Court of Appeals agreed with the Court's calculation of the Guidelines, but ordered a limited Paladino remand. The Court advised the Seventh Circuit that it would have imposed the same sentence had it known that the Guidelines were advisory only. The Seventh Circuit then affirmed the judgment in a per curium opinion. Lockard did not seek a writ of certiorari in the United States Supreme Court, and the time for filing such a writ expired on May 2, 2006. Lockard timely filed a petition for a writ of habeas corpus. He supplemented that motion, by counsel, on July 12, 2007.
The PSR concluded that Lockard's relevant conduct was between 500 and 1,500 grams of a mixture and substance containing methamphetamine, resulting in an offense level 32. In addition, the PSR concluded that Lockard possessed a firearm during the commission of a drug crime, resulting in a two-level increase to his offense level. The PSR also concluded that Lockard had used a minor in the commission of the offense, resulting in a two-level increase. Finally, the PSR concluded that Lockard had not accepted responsibility and was not entitled to a two-level reduction to his offense level. As a result, the PSR calculated Lockard's offense level at 36. His criminal history category was III. The resulting Guideline sentencing range was 235-293 months. Lockard filed timely objections to the relevant conduct calculations, the gun enhancement and the denial of an acceptance of responsibility reduction. The Court held a sentencing hearing on May 20, 2004, at which Lockard was again represented by counsel Mr. Veltman. At the hearing Lockard indicated he was also objecting to the "use of a minor" increase. Lockard's co-defendants, Rudy Loyd and Mark Keller, testified for the Government to support the PSR's calculations of relevant conduct and also to support the gun enhancement.
Mr. Veltman conducted a cross examination of Loyd and Keller pointing out the reasons they might have for lying about Lockard. The Government then called Detective Captain Dennis Hout to testify that Rick A. Bower relayed to Detective Hout that Bower was obtaining 15 grams of methamphetamine a week from Lockard while Bower was 17 years old. Mr. Veltman conducted a cross-examination of Detective Hout pointing out that Bower was never arrested based on the information he relayed to Detective Hout. Mr. Veltman called no witnesses to testify in support of Lockard's objections. The Court overruled Lockard's objections, and found that Lockard had used a minor in the commission of the offense, had possessed a firearm during the commission of a drug crime and had acted in a manner inconsistent with an acceptance of responsibility. The Court found that the offense level calculation of 36 was correct and that the Guideline calculations in the PSR were correct. The Court sentenced Lockard to a term of imprisonment of 240 months, higher than the low end of the applicable Guideline range, higher than any of his co-defendants, but lower than the statutory maximum of 40 years to which Lockard was subject as a result of his plea.
I. Standard for Habeas Corpus Relief
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 show that the prisoner is entitled to no relief." 28 U.S.C. § 2255.
Lockard raises the following claims for relief:
1) That Mr. Veltman rendered ineffective assistance of counsel by failing to adequately contest the PSR's ...