The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge
Before the Court is an Amended Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (Doc. 22). Respondent answered the Amended Motion on November 19, 2008 (Doc. 26). For the reasons stated below, the Amended Motion is DENIED.
On December 8, 2004, following a jury trial in the United States District Court for the Central District of Illinois, Petitioner, Shane T. Watkins, was convicted of possessing more than 50 grams of cocaine base (crack) with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). Petitioner was sentenced to a mandatory term of life imprisonment. The judgment in Petitioner's underlying criminal case was entered on April 5, 2005.
Petitioner appealed his conviction to the United States Court of Appeals for the Seventh Circuit, raising a challenge to the district court's partial denial of his motion to suppress certain incriminating statements made to police. The Court of Appeals affirmed the district court's judgment on March 31, 2006. Watkins did not petition the United States Supreme Court for a writ of certiorari.
On March 19, 2007, Petitioner Watkins filed the instant Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (Doc. 2). In the initial Motion to Vacate, Petitioner raised various claims of ineffective assistance of counsel, in addition to claims challenging the severity of his sentence. By Order of August 17, 2007, the Court directed Petitioner to submit a memorandum detailing the factual bases of his claims. By Order of December 21, 2007, on a motion by Petitioner, the Court directed the Federal Public Defender's Office to mail Petitioner's trial and sentencing transcripts to the Warden at McCreary Penitentiary so as to allow Petitioner access to the transcripts, subject to reasonable temporal restrictions. Subsequently, Petitioner submitted various motions, in which he objected to the temporal restriction placed on his access to the trial transcripts. These motions were denied.
On March 28, 2008, pursuant to extensions of time granted by the Court, Petitioner filed an Amended Motion pursuant to 28 U.S.C. § 2255 by depositing it with prison officials for mailing. In compliance with the Court's Orders of September 11 and November 13, 2008, Respondent answered the Amended Motion on November 19, 2008. On December 10, 2008, the Court granted Petitioner leave to file a reply to the Government's responsive pleading. Petitioner ultimately chose not to file a reply.
In order for a court to grant relief under 28 U.S.C. § 2255, a petitioner must show that his "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." 28 U.S.C. § 2255(a).
As a preliminary matter, the Court finds Petitioner's instant section 2255 motion to be timely. Because Petitioner did not petition the United States Supreme Court for certiorari on direct appeal, the judgment of his conviction became final ninety days after March 31, 2006 (the date on which the Court of Appeals affirmed the judgment). See Clay v. United States, 537 U.S. 522, 532 (2003); McMahan v. United States, 2009 WL 509869, at *2 (N.D. Ill. Mar. 2, 2009). Petitioner's initial section 2255 motion was filed on or about March 19, 2007, within the one-year limitation period set forth in 28 U.S.C. § 2255(f)(1). Petitioner later filed the Amended Motion pursuant to leave granted by the Court.*fn1
The Amended Motion raises the following grounds for relief under section 2255:
A. Petitioner's trial counsel was constitutionally ineffective for failing to convey to Petitioner an alleged plea offer by the Government.*fn2
B. Pursuant to a recent change in federal law, the district court's use of Petitioner's prior convictions, to enhance his sentence, was improper.
C. Petitioner's trial counsel was constitutionally ineffective for failing to move for a hearing, under Franks v. Delaware, 438 U.S. 154 (1978), to challenge the existence of probable cause for the search of Petitioner's residence.
D. Petitioner's trial counsel was constitutionally ineffective for (i) failing to argue that Petitioner's possession of crack cocaine was for personal use and for (ii) failing to request a jury instruction consistent with this argument.
E. Petitioner's trial counsel was constitutionally ineffective for failing to conduct adequate pretrial investigation.
F. Petitioner's trial counsel was constitutionally ineffective for failing to object to a "constructive amendment to the indictment."
G. Petitioner's trial counsel was constitutionally ineffective for failing to object, on the basis of Brady v. Maryland, 373 U.S. 83 (1963), to the prosecution's failure to produce evidence favorable to Petitioner, related to a ...