The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court, following remand from the Seventh Circuit Court of Appeals, on the pro se Motion under § 2255 to Vacate, Set Aside or Correct Sentence (#1) filed by Petitioner, Alfred J. Gant. Following this court's careful review of Petitioner's Motion (#1) and the Government's Response (#25), this court agrees with the Government that an evidentiary hearing is necessary prior to ruling on the Motion. This case is therefore scheduled for a telephone status conference on May 27, 2009, at 1:30 p.m. so an evidentiary hearing can be scheduled.
I. PETITIONER'S CRIMINAL CASE
Petitioner was charged by indictment in this court in Case No. 03-CR-20043. On November 19, 2003, Petitioner was found guilty, following a jury trial, of the offense of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). A presentence investigation report (PSR) was prepared prior to sentencing. The PSR stated that Petitioner was an Armed Career Criminal pursuant to 18 U.S.C. § 924(e)(1) and U.S.S.G. § 4B1.4 because he had four prior convictions for either a violent felony or a serious drug offense. The PSR stated that Petitioner's sentencing guideline range was 188 to 235 months of imprisonment. On April 14, 2004, this court held a sentencing hearing. Petitioner objected to his classification as an Armed Career Criminal, contending that the classification violated the Eighth Amendment's prohibition against cruel and unusual punishment. This court overruled the objection and adopted the PSR's findings. This court then sentenced Petitioner to 188 months of imprisonment.
Petitioner filed a Notice of Appeal and claimed, on appeal, that this court erred in two of its evidentiary rulings and in refusing to give a requested jury instruction. On January 12, 2005, while Petitioner's appeal was under consideration, the United States Supreme Court decided United States v. Booker, 543 U.S. 220 (2005). On February 1, 2005, the Seventh Circuit rejected Petitioner's arguments and affirmed his conviction. United States v. Gant, 396 F.3d 906 (7th Cir. 2005). Petitioner filed a petition for rehearing, raising for the first time an argument under Booker. The Seventh Circuit denied the petition for rehearing on March 10, 2005.
II. FIRST MOTION UNDER § 2255
On May 18, 2005, Petitioner filed a Motion under 28 U.S.C. § 2255 in Case No. 05-CV-5119. Petitioner claimed he did not have the necessary convictions to qualify him for sentencing as an Armed Career Criminal because his civil rights had been restored on two of the underlying convictions. Petitioner also claimed that the Government failed to prove to a jury beyond a reasonable doubt the existence of the prior convictions.
On July 18, 2005, this court denied the Motion, concluding that Petitioner's claims were procedurally defaulted because they were not raised on direct appeal. Petitioner filed a motion to reconsider and asked this court to allow him to amend his motion. This court granted Petitioner's request and directed him to file an amended Motion under § 2255. In his amended Motion, Petitioner claimed his trial counsel was ineffective for failing to investigate and challenge the prior convictions used to classify him as an Armed Career Criminal. Petitioner also claimed that his counsel was ineffective for failing to raise a timely Booker issue during his direct appeal. Petitioner further claimed that this court, rather than a jury, impermissibly made the factual determination of the existence of his prior convictions.
On March 28, 2006, this court entered an Opinion ruling on Petitioner's amended Motion under § 2255. This court rejected Petitioner's claim that his trial counsel provided ineffective assistance of counsel for failing to investigate or challenge his classification as an Armed Career Criminal and also rejected Petitioner's claim that this court engaged in impermissible fact-finding regarding Petitioner's prior convictions. This court concluded, however, that Petitioner's appellate counsel had been ineffective for failing to raise a timely Booker challenge to his sentence. This court therefore ordered that Petitioner would be resentenced. This court appointed new counsel to represent Petitioner at the resentencing hearing.
On August 25, 2006, this court conducted a resentencing hearing and lowered Petitioner's sentence to 180 months of imprisonment. This was the statutory mandatory minimum sentence under 18 U.S.C. § 924(e). Following resentencing, Petitioner did not appeal the amended judgment.
On December 4, 2006, Petitioner filed a Notice of Appeal concerning this court's ruling denying two of the claims raised in his amended Motion under § 2255. This court denied Petitioner's request for a certificate of appealability. The Seventh Circuit dismissed the appeal for lack of jurisdiction under Rule 4(a) of the Federal Rules of Appellate Procedure, finding that the Notice of Appeal was filed more than six months late.
III. SECOND MOTION UNDER § 2255
On May 10, 2007, Petitioner filed a new Motion under § 2255 to Vacate, Set Aside or Correct Sentence (#1) in this case. On June 11, 2007, the Government filed its Response to Petitioner's Second Motion under 28 U.S.C. § 2255 (#3). On June 14, 2007, this court entered an Opinion (#4) which dismissed Petitioner's Motion ...