The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On August 3, 2009, Juan White ("Petitioner"), filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (#1). On October 19, 2009, the United States of America filed its Response (#6). Petitioner filed his Reply (#7) on December 2, 2009. For the reasons that follow, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (#1) is DENIED.
On November 7, 2003, Petitioner was charged by indictment with one count of distributing 50 or more grams of cocaine base ("crack") in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(a) ("Count I") and possession of a firearm by a felon in violation of 18 U.S.C. § 922 (g) ("Count II"). On November 19, 2004, petitioner entered a guilty plea to Count II of the indictment.
On April 4, 2005, a jury trial commenced on Count I of the indictment.
On April 7, 2005, The jury found petitioner guilty of Count I.
On November 9, 2005, White moved to admit arguments and evidence regarding the form of cocaine base he distributed. (R.136-37) The United States responded. (R.145) and Petitioner responded to the United States' response. (R.147). On September 8, 2006, this court denied petitioner's challenge to the form of cocaine base because it was both redundant and irrelevant. (R.168). This court found neither insufficient evidence to support the jury's verdict that the substance was crack cocaine nor procedural error to taint the jury's verdict.
On November 29, 2006, petitioner was sentenced to a term of 360 months of imprisonment. Petitioner was also sentenced to a concurrent 120 month term on the firearm charge.
On June 4, 2007 Petitioner, through his appellate counsel, filed a brief to appeal his conviction and sentence. Petitioner then moved to file his own pro se supplemental brief. The Seventh Circuit Court of Appeals granted petitioner's request in part, allowing petitioner to file his brief on two issues: (1) whether this court improperly admitted evidence under Fed. R. Evid. 608(b); and (2) whether this court erred by denying petitioner an entrapment defense. Ultimately, the Court of Appeals affirmed petitioner's conviction and sentence. United States v. White, 519 F.3d 342 (7th Cir. 2008).
On August 3, 2009, petitioner filed the present motion under 28 U.S.C. § 2255, which this court now addresses.
Petitioner raises three claims in his § 2255 motion; (1) the Seventh Circuit Court of Appeals unconstitutionally denied his right to appeal; (2) his appellate counsel provided ineffective assistance during his appeal; (3) his trial attorney provided ineffective assistance during trial because his counsel failed to conduct an independent inquiry into the conclusion that he distributed "crack" and not another form of cocaine base.
First, Petitioner argues that the Court of Appeals unconstitutionally denied his right to appeal by limiting the issues addressed in his pro se supplemental brief. This court does not possess the jurisdiction to review a decision by the Court of Appeals, therefore Petitioner's motion on this issue is denied.
Petitioner next claims that his counsel provided ineffective assistance on appeal. The two-pronged test announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), is the benchmark in determining whether assistance of counsel has been constitutionally ...