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 Kevin M. Johnson's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1) (Motion). The Government filed a Response to Motion Under 28 U.S.C. § 2255 (d/e 5), and Petitioner filed his Response to Government's Reply Brief (d/e 6). For the reasons stated below, Johnson's Petition is denied.
On January 6, 2005, the Government charged Petitioner Kevin M. Johnson in a two-count Indictment in the Central District of Illinois. Central District Illinois Case No. 05-30011, Indictment (d/e 1). The charges were: (1) conspiracy to manufacture 50 grams or more grams of methamphetamine and/or 500 or more grams of a mixture or substance containing a detectable amount of methamphetamine; and (2) conspiracy to distribute 50 grams or more of methamphetamine and/or 500 or more grams of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Central District Illinois Case No. 05-30011, Indictment (d/e 1). Johnson pleaded guilty to both charges on March 22, 2006, with sentencing to be held on July 14, 2006. Central District Illinois Case No. 05-30011, 03/22/2006 Minute Entry. He remained on bond pending sentencing. Id.
On June 20, 2006, the Government filed under seal a Petition for Action on Conditions of Pretrial Release, which incorporated the report of U.S. Probation Officer Paul D. Kotcher. The Government requested that the Court order Johnson's bond be revoked and order his arrest for, among other alleged violations, threatening Julia Raymond, one of the witnesses in the case against him. Central District Illinois Case No. 05-30011, Petition for Action on Conditions of Pretrial Release (d/e 49). Magistrate Judge Byron Cudmore granted the Government's Petition that same day, and Johnson was arrested and placed in the U.S. Marshal Service's custody.
Central District Illinois Case No. 05-30011, 06/22/2006 Minute Entry.
Johnson's attorney filed, and the Court granted, a Motion for Appointment of Investigator, to look into the circumstances surrounding his arrest for violating the conditions of his bond. Central District Illinois Case No. 05-30011, Motion for Appointment of Investigator (d/e 51); 06/26/2006 Text Order. On July 7, 2006, the Court consolidated Johnson's bond hearing with his sentencing hearing, to take place on October 16, 2006. Central District Illinois Case No. 05-30011, 07/07/2006 Text Order.
The U.S. Probation Office created a Presentence Investigation Report (PSR), which indicated that Johnson was responsible for 2661.04 grams of a mixture or substance containing methamphetamine, resulting in a base offense level of 34. Central District Illinois Case No. 05-30011 PSR (d/e 84), ¶¶ 76, 86. The PSR gave Johnson a 3-level enhancement for creating a substantial risk of harm to human life and to the environment, and a 2-level enhancement for obstruction of justice. PSR ¶¶ 88, 92. The PSR stated that Johnson was not entitled to the 2-level reduction under the "safety valve" provision of U.S.S.G. § 5C1.2(a)(1) because of the threats of violence he made in connection with his offenses. PSR ¶ 89. Additionally, Johnson was ineligible for a 3-level reduction for acceptance of responsibility because his obstruction of justice was inconsistent with accepting responsibility for his actions. PSR, ¶ 94. He had 1 criminal history point, placing him in Category I. PSR, ¶¶ 101-03. The PSR stated that Johnson's total offense level was 39, with a sentencing guideline range of 262 to 327 months. PSR ¶ 146. Had Johnson not received the 2-level enhancement for obstruction of justice, and had he received reductions under the safety valve and acceptance of responsibility provisions, his total offense level would have been 32, with a mandatory minimum sentence of 120 months on each charge.
Johnson's attorney filed a Commentary on Sentencing Factors, objecting to the obstruction of justice enhancement and the loss of reductions to the offense level for accepting responsibility and the safety valve provision. Central District Illinois Case No. 05-30011, Defendant's Commentary on Sentencing Factors (d/e 71). In the Commentary, Johnson's attorney argued that Raymond's accusations against Johnson were fabricated, and that Johnson therefore should not receive an enhancement for obstructing justice. Id., p. 4. Johnson's attorney also attached the report of an investigator he had hired to look into the incident with Raymond. Id., Ex. A. Trial counsel supplemented this filing three times, attaching the investigator's reports as they became available. Central District Illinois Case No. 05-30011, Supplement to Defendant's Commentary on Sentencing Factors (d/e 75); Second Supplement to Defendant's Commentary on Sentencing Factors (d/e 76); Third Supplement to Defendant's Commentary on Sentencing Factors (d/e77).
At the October 16, 2006, evidentiary hearing, Johnson's attorney raised objections to the sentence enhancements for obstruction of justice and for creating a substantial risk of harm to human life or the environment. Central District Illinois Case No. 05-30011, Transcript of Proceedings 10/16/2006, at 4-5. He also objected to the lack of a reduction under the safety valve and acceptance of responsibility provisions. Id. When the Court asked Johnson whether he had any additional objections, he said, "I don't believe so, no." Id. at 5. Johnson's counsel proceeded to call several witnesses who testified about the altercation between Johnson and Raymond. Id. at 8-110. At the conclusion of the testimony, Johnson's attorney argued that the evidence was insufficient to demonstrate that Johnson had threatened Raymond, and therefore the obstruction of justice enhancements should not apply. He also argued that Johnson should have the benefit of the reductions for acceptance of responsibility and the safety valve provision. Id. at 111-12.
Ultimately, the Court adopted the PSR's recommendations and sentenced Johnson to 230 months, a sentence below that recommended by the Guidelines and more in keeping with the sentences given to his co-conspirators. Id. at 143. The Court gave Johnson a 10-month credit for time already served, leaving him with 220 months on each count to run concurrently. Id.
Johnson filed a Notice of Appeal on October 18, 2006. Central District Illinois Case No. 05-30011, Notice of Appeal (d/e 79). The United States Court of Appeals for the Seventh Circuit appointed a federal defender to prosecute Johnson's appeal. The two issues that Johnson's attorney presented to the Seventh Circuit were: (1) whether Johnson confronting Raymond constituted obstruction of justice; and (2) whether the confrontation constituted a threat sufficient to eliminate a sentencing reduction under the safety valve provision. Response to Motion Under 28 U.S.C. § 2255, Ex. 1, p. 2. The Seventh Circuit rejected both of these arguments, holding that the District Court did not err in giving Johnson an enhancement for obstruction of justice, and that his altercation with Raymond made him ineligible for a sentence reduction under the safety valve provision. United States v. Johnson, 497 F.3d 723, 725 (7th Cir. 2007).
Johnson then filed his Motion in the instant matter, arguing that he is entitled to relief under § 2255 because he was denied his Sixth Amendment right to effective assistance of counsel at both the ...