The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Kendrick D. Latham's ("Latham") amended motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 3). Latham has also filed two documents purporting to supplement his § 2255 motion (Docs. 13 & 14). The government has responded to the motion (Doc. 47), and Latham replied to that response (Doc. 52). Latham has also filed a motion for newly discovered evidence (Doc. 51).
On June 3, 2001, Latham was arrested after a caller to law enforcement reported Latham had threatened him with a gun. While under arrest, Latham gave a statement to law enforcement officers in which he admitted to distributing crack cocaine in and around Cairo, Illinois, with his co-defendant Larry Nesby ("Nesby"), identified his sources, admitted that two juveniles worked for him in his distribution activities and admitted he carried a gun during and in furtherance of his drug distribution activities.
On July 10, 2001, Latham was indicted on one count of conspiring to distribute 5 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and one count of possessing with intent to distribute 5 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1). A superseding indictment was returned in January 2002 increasing the amount of drugs involved in the conspiracy count to 50 grams or more. In May 2002, a second superseding indictment was returned omitting a count against a co-defendant who had been severed from Latham.
Latham was first represented at the district court level by attorney John M. Delaney Jr. ("Delaney"). Delaney filed a motion to suppress (Doc. 27), a motion to sever (Doc. 22), and a motion for funds to retain a handwriting expert (Doc. 28).
The motion to suppress challenged the admission of Latham's June 2001 incriminating statements. In his written motion, Latham claimed law enforcement did not advise him of his Miranda rights, that he did not sign a written waiver of his Miranda rights before giving his statement and that his signature on the written waiver was a forgery. The Court granted the motion for funds to retain a handwriting expert to examine the written waiver, but the expert proved unhelpful to Latham, so he abandoned that theory for suppression. He subsequently admitted he signed the form but claimed he did not know it was a waiver and had never made the incriminating statements. The Court held a hearing on the motion to suppress, found Latham's testimony in support of the motion to be completely untruthful and denied the motion. The Court then allowed Delaney to withdraw as Latham's counsel and appointed Paul B. Vanni ("Vanni") to replace him.
While Latham was represented by Vanni, the Court granted Latham's motion to sever his trial from Nesby's. The Court then allowed Vanni to withdraw as Latham's counsel and appointed Douglas A. Forsyth Sr. ("Forsyth") to replace him.
Under Forsyth's watch and on the morning of trial, Forsyth indicated he was unprepared for trial because he had not interviewed some witnesses and had not communicated with Latham in the three weeks prior to trial. The Court adjourned Court immediately after jury selection to allow Forsyth the time he thought he needed to interview witnesses, review the trial transcript from Nesby's trial, which involved the same major witnesses, and talk to Latham. The trial resumed a week later.
At trial, the government presented Latham's June 2001 incriminating statement and testimony from witnesses who purported to be Latham's two drug sources, the owners of a house where Latham prepared and/or sold drugs, drug business competitors, the juveniles who worked for Latham and others. On July 17, 2002, a jury convicted Latham of both counts as charged in the indictment.
The Court began the sentencing hearing on October 15, 2002, but continued the hearing to give Forsyth an opportunity to meet with Latham to explore further possible objections to the Presentence Investigation Report ("PSR") recently brought to Forsyth's attention. Specifically, Forsyth sought an opportunity to obtain impeachment evidence that David Trainer ("Trainer"), who testified he was one of Latham's drug suppliers, was at other places at the times he claimed to be obtaining drugs with Latham and was incorrect in his testimony that Nesby was dealing drugs on certain days.
On November 7, 2002, the Court resumed the sentencing hearing.*fn1 Forsyth filed objections to the PSR's relevant conduct calculation, gun enhancement, obstruction of justice enhancement, use of a minor enhancement and numerous other items. Latham himself objected to his criminal history calculation.
Based on the testimony presented at trial, which the Court found credible, and despite the additional documentary evidence presented by Forsyth showing Latham was in Chicago for 3 days during the period he was alleged to have been selling drugs in Cairo, the Court found by a preponderance of the evidence that Latham's relevant conduct was 847.56 grams of crack cocaine. That amount placed Latham's relevant conduct in the category of at least 500 grams but less than 1.5 kilograms of crack cocaine and yielded a base offense level of 36 under United States Sentencing Guideline Manual*fn2 ("U.S.S.G.") § 2D1. . The Court further found that Latham's offense level should be enhanced by 2 points under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon during the commission of the offense, by 2 points under U.S.S.G. § 3B1.4 for using a minor to commit the offense, and by 2 points under U.S.S.G. § 3C1.1 for obstructing justice relating to the offense, yielding a total offense level of 42.
The Court further found that Latham had six criminal history points based on past convictions, two criminal history points because he was under a criminal sentence when he committed the instant offenses, and one criminal history point because the instant offenses were committed less than two years following his release from custody for his prior crimes. Thus, he had a total of nine criminal history points, which under U.S.S.G. § 4A1.1(e) placed him in criminal history category IV.
His criminal history category of IV and his offense level of 42 established a sentencing range of 360 months to life in prison on the conspiracy count and 360 to 480 months in prison on the possession count. The Court sentenced Latham to serve 480 months on each count, to run concurrently.
On November 14, 2002, Latham appealed to the Seventh Circuit Court of Appeals, who appointed Kent R. Carlson ("Carlson") as counsel. Carlson advised Latham to dismiss his appeal because there were no viable appeal issues and to proceed instead by filing a § 2255 motion. On April 30, 2003, Carlson filed a motion to dismiss Latham's appeal, which the Court of Appeals granted on May 1, 2003.
On May 15, 2003, Latham filed a pro se motion asking the Court of Appeals to reconsider the dismissal on the grounds that it was not voluntary. At the Court of Appeals' request, Carlson responded to the motion, indicating that he had discussed with Latham the strategy of dismissing his appeal and pursuing his claim via a motion under § 2255. On June 9, 2003, the Court of Appeals denied Latham's motion to reconsider and later refusing to hear a motion to vacate that decision. Latham did not file a petition for a writ of certiorari to the Supreme Court.
Latham filed his original § 2255 on May 7, 2004. Latham filed an amended motion on August 30, 2004. In the amended motion, Latham asks the Court to vacate his conviction and sentence on a variety of grounds:
1. Latham's conviction and sentence were obtained using evidence obtained as a result of his warrantless arrest without probable cause, specifically, Latham's statements as well as those of two juveniles arrested at the same time and the drugs, gun and money discovered as a result of the juveniles' statements, and his counsel was constitutionally ineffective for failing to investigate and challenge his arrest;
2. there was insufficient evidence to support a jury finding beyond a reasonable doubt as to the amount of crack cocaine involved in Latham's offenses or to support his relevant conduct because the evidence presented at trial was too vague and did not ensure a unanimous jury finding, and his counsel was constitutionally ineffective for failing to move for judgment of acquittal or to object to the relevant conduct calculation;
3. there was insufficient evidence to support a jury finding beyond a reasonable doubt that Latham conspired with others to distribute crack cocaine as opposed to simply buying and selling it, and his counsel was constitutionally ineffective for failing to research the legal issues and to move for judgment of acquittal on the conspiracy count;
4. Latham's offense level was improperly enhanced by a finding that he had possessed a firearm, but the finding was not charged in the indictment, submitted to a jury or proved beyond a reasonable doubt, and his counsel was constitutionally ineffective for failing to raise the argument at sentencing and on appeal;
5. Latham's criminal history category was improperly determined based on the incorrect assertion that he was under a criminal justice sentence at the time he committed the offenses in this case, and his counsel was constitutionally ineffective for failing to investigate Latham's criminal history and challenge his criminal history category at sentencing;
6. Latham's conviction and sentence were improperly based on evidence of a package of crack cocaine for which two different weights were established at different points in the chain of its custody (the later weight was lighter than the earlier weight) without explanation, and his counsel was constitutionally ineffective for failing to raise the issue on appeal;
7. in light of Blakely v. Washington, 542 U.S. 296 (2004), Latham's sentence was improperly based on a relevant conduct amount not proved to the jury beyond a reasonable doubt and based on unreliable evidence, and his counsel was constitutionally ineffective for failing to raise this argument at sentencing; and
8. his counsel was constitutionally ineffective for the foregoing reasons and for failing to locate, interview and subpoena six specific witnesses who would have provided testimony favorable to Latham, to object to hearsay evidence, to submit a lesser included offense jury instruction and a special verdict form for a specific drug amount, to argue multiple conspiracies, to impeach government witnesses with their prior inconsistent statements, to sufficiently argue the motion to suppress, to argue at sentencing that Latham did not possess a gun in connection with the charged offenses, to raise Blakely issues on appeal, to adequately advise him before trial about relevant conduct and possible sentence enhancements so he could intelligently consider a plea agreement, to keep secret until trial potential inconsistency in government agents' testimony, to present a defense at trial, to meet sufficiently with Latham before trial and to subpoena documents to be used as evidence at trial. He also claimed his ...