The opinion of the court was delivered by: Jeanne E. Scott United States District Judge
JEANNE E. SCOTT, U.S. District Judge
This matter comes before the Court on Petitioner Delbert Eugene Marshall's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1) (Petition). For the reasons stated below, Marshall's Petition is denied.
On November 9, 2005, Marshall entered an open plea of guilty to six counts: (1) distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1); (3) distribution of cocaine base within 1,000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) & 860; (4) possession of cocaine and at least 5 grams of cocaine base with intent to distribute within 1,000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) & 860; (5) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and (6) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). On Counts 1 and 2, Marshall faced a statutory maximum sentence of 20 years, or 240 months, imprisonment. See 21 U.S.C. § 841(b)(1)(C). On Count 3, he faced a statutory maximum of 40 years, or 480 months, imprisonment applied. See 21 U.S.C. § 860(a). On Count 4, he faced a statutory maximum of 80 years, or 960 months, imprisonment. See 21 U.S.C. § 860(a). On Count 5, he faced a maximum of 10 years, or 120 months, applied. See 18 U.S.C. § 924(a)(2). On Count 6, he faced a statutory maximum of life imprisonment. See 18 U.S.C. § 924(c)(1)(A)(I).
Marshall's Indictment did not specify how much cocaine or cocaine base he allegedly distributed or possessed, except that on Count 4, it charged him with possessing at least 5 grams of cocaine base. At his change of plea hearing, Marshall admitted that if he were to proceed to trial, on Count 1 the Government could prove that he distributed at least 6.4 grams of cocaine; on Count 2 the Government could prove that he possessed at least 1.1 grams of cocaine base; on Count 3 it could prove that he possessed at least 4.4 grams of cocaine base; and on Count 4 it could prove that he possessed at least 112 grams of cocaine and at least 6.1 grams of cocaine base. See Cent. Dist. Ill. Case No. 05-30079 Transcript for Proceedings on May 19, 2006 (d/e 28), at 49-55.
The Pre-Sentence Report (PSR) indicated that Marshall should be held accountable for a total of 2.01 kilograms of cocaine base and 6.6 kilograms of cocaine. It relied in part on statements from an informant, Terry Newman, who knew of Marshall's drug sales from 2002 to 2005. Newman's statements did not indicate on what dates he observed Marshall selling drugs. At a contested sentencing hearing, the ATF agent who spoke with Newman testified. On cross-examination, Marshall's attorney asked the agent whether he was aware that from October of 2003 to March of 2004, Newman was incarcerated. The agent testified that he had not known this. Marshall's attorney then introduced as evidence Newman's judgment supporting the dates of his incarceration. Moreover, in argument he asserted that if Newman was incarcerated for a large portion of the time during which he alleges he saw Marshall making drug sales, he could not have observed sales. Additionally, Marshall's attorney argued that from September of 2003 to January of 2004, Marshall was incarcerated, and so could not have made any drug sales during that period.
After considering the evidence and argument on relevant conduct, the Court held Marshall accountable for 2.01 kilograms of cocaine base but only 118.4 grams of cocaine. See Cent. Dist. Ill. Case No. 05-30079 Opinion issued April 13, 2006 (d/e 19), at 3. Regarding Newman's statements specifically, the Court held:
The objection to the Newman information is that it's vague. However, I think that the indicia of reliability is found in his information and the details that were corroborated, and I accept the accuracy of what is attributable to the Defendant from Paragraph 6.
Notably, the witness indicated that Newman said two kilograms of crack cocaine and two kilograms of powder were estimated to have been sold by the Defendant from August --excuse me, from 2003 to August of '05. There was a time when the Defendant was out of jail in that time frame sufficient to do that.
Cent. Dist. Ill. Case No. 05-30079 Transcript of Proceedings on April 10, 2006 (d/e 27), at 99. Including a one-level increase for committing his offenses near a school, Marshall's offense level was 39. His Criminal History score placed him in Category VI.
The Court sentenced Marshall to 240 months imprisonment on each of Counts 1 and 2, 360 months imprisonment on each of Counts 3 and 4, and 120 months imprisonment on Count 5, all to run concurrently. On Count 6, Marshall received 60 months imprisonment, to run consecutively. In total, the Court sentenced Marshall to 420 months imprisonment.
Marshall appealed his sentence, arguing in part that the Court should not have relied on Newman's statements in calculating drug quantity because Newman was in jail during part of the time period when he claimed to witness Marshall's sales. The Seventh Circuit affirmed Marshall's sentence on December 14, 2006. It held that the Court had properly justified its drug quantity assessment. United States v. Marshall, 208 Fed.Appx. 481, 483 (7th Cir. 2006). The Seventh Circuit issued its mandate January 5, 2007.
On May 2, 2007, Marshall filed a petition for writ of certiorari before the Supreme Court. The Supreme Court denied his petition on June 4, 2007. Marshall then filed the instant Petition. In his Certificate of Service, Marshall averred, "under penalty of perjury," that he placed his Petition in his prison institutional mailing system "on or about March 12, 2008." Petition, Exhibit 1, Certificate of Service, at 2.
In his Petition, Marshall raises four claims of ineffective assistance of counsel. First, he argues that his attorney should have argued that the Court could not consider the relevant conduct evidence regarding drug quantity without a jury finding or a guilty plea admitting such quantity. Second, he contends that his attorney should have submitted evidence to counter the drug quantity evidence. Third, he asserts that his attorney should have argued that the sentence imposed was unreasonable because no scientific evidence proved that the cocaine at issue was crack cocaine. Fourth, he argues that his attorney should have argued that his sentence violated the guarantees of Equal Protection because the Court assessed cocaine base to powder cocaine at a 100:1 ratio.
Marshall fails to establish a basis for habeas relief. First, while Marshall's Petition was timely, he neglected to provide any evidence in support of his claims. Second, even if the Court were to accept the information he alleges as true, it would not suffice ...