The opinion of the court was delivered by: J. Phil Gilbert, District Judge
This matter comes before the Court on petitioner Ruben Arroyo's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1)*fn1 and its supplement (Doc. 2). The government has responded to the motion (Doc. 10), and Arroyo has replied to the government's response (Doc. 13).
In April 2005, Arroyo was first indicted in this case. In May 2005, the grand jury returned a superseding indictment charging Arroyo with six counts: one of conspiring to distribute 50 grams or more of crack cocaine, 5 kilograms or more of powder cocaine and 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) & 846 (Count 1) and five counts of distributing either less than 500 grams of powder cocaine, 50 grams or more of crack cocaine or 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), (B) or (C) (Counts 2-6). On February 2, 2006, Arroyo pled guilty to those charges without a plea agreement. The Court accepted his plea after its standard colloquy pursuant to Federal Rule of Criminal Procedure 11 in which it ensured Arroyo understood the possible penalties he was facing by pleading guilty and that by pleading guilty he was giving up his rights to a jury trial, to confront his accusers at trial and to bring witnesses in to testify on his own behalf at trial. In the colloquy, Arroyo assured the Court he understood he was waiving those rights, was pleading guilty as his own free and voluntary act and had not been promised anything or threatened by anything to induce him to plead guilty. Arroyo also admitted drug activity to support each count and that he possessed a firearm during the course of the charged conspiracy. When asked by the Court, the government estimated Arroyo's sentencing range under the guidelines would be at least 360 months to life and possibly mandatory life. The Court confirmed that, knowing he could be facing life in prison, Arroyo still wished to plead guilty.
On June 1 and 22, 2006, the Court held a sentencing hearing at which it considered Arroyo's objections to the presentence investigation report's ("PSR") findings as to his relevant conduct, his possession of a weapon during the conspiracy and his use of a minor in the offense, among other things. The Court heard evidence on those matters from government witnesses; Arroyo called no witnesses. The Court found by a preponderance of the evidence that Arroyo's relevant conduct, comprised of multiple drugs, was at least 30,000 kilograms of marihuana equivalency units ("MEUs"), which under United States Sentencing Guidelines Manual ("U.S.S.G.") § 2D1.1*fn2 yielded a base offense level of 38.
His offense level was increased by 2 points under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon based on the testimony of two witnesses regarding two guns discovered by law enforcement officers during a search of Arroyo's residence and on Arroyo's admissions during his plea colloquy. The Court also increased his offense level by 3 points under U.S.S.G. § 3B1.1(b) for being a manager or supervisor and by 2 points under U.S.S.G. § 3B1.4 for using a minor to commit the offense. Arroyo's offense level was decreased by 3 points under U.S.S.G. § 3E1.1 for acceptance of responsibility, yielding a total offense level of 42. Arroyo's PSR found Arroyo was only entitled to a 2-point reduction for acceptance of responsibility, but at sentencing Arroyo's counsel made a compelling argument that convinced the government to move for the additional 1-point reduction in light of the level of Arroyo's cooperation and of sentences given to other similar offenders.
When determining Arroyo's criminal history, the significance of two convictions for driving an uninsured vehicle was disputed. The Court rejected Arroyo's counsel's argument that the convictions should not be considered in calculating Arroyo's criminal history and found his criminal history to be in category III. Considering Arroyo's criminal history category of III, this yielded a sentencing range of 360 months to life on Counts 1 and 4, 240 months on Counts 2, 3 and 5, and 360 to 480 months on Count 6. The Court imposed a sentence of 420 months on Counts 1, 4 and 6, and 240 months on Counts 2, 3 and 5, no more than the statutory maximum sentences established by Arroyo's convictions. See 21 U.S.C. § 841(b)(1).
Arroyo appealed to the Seventh Circuit Court of Appeals, where his counsel filed an Anders brief seeking to be allowed to withdraw from the case. See Anders v. California, 386 U.S. 738 (1967). The Court of Appeals granted counsel's motion to withdraw and dismissed Arroyo's appeal on March 12, 2007. United States v. Arroyo, No. 06-2850,2007 WL 737353 (7th Cir. Mar. 12, 2007). The Court of Appeals issued the mandate on April 3, 2007. Arroyo did not petition the United States Supreme Court for a writ of certiorari.
On April 14, 2008, Arroyo filed a timely § 2255 motion enumerating various grounds for relief.*fn3 The Court has attempted to distill Arroyo's 116-page filing and its 16-page supplement to the core arguments, which are as follows:
1. Arroyo was deprived of his Sixth Amendment right to effective assistance of counsel when:
a. his trial counsel failed to file a motion to suppress the guns seized during the search of Arroyo's residence and the fruits of that search;
b. his trial counsel failed to advise Arroyo of all the facts and law relevant to his decision to plead guilty;
c. his trial counsel failed at trial and sentencing to investigate and present evidence in Arroyo's favor and failed to object to the government's improper evidence;
d. his trial counsel failed to move for a downward departure;
e. his appellate counsel failed to present the strongest issues on appeal and failed to argue on appeal:
i. that the Court did not properly weigh the sentencing factors in 18 U.S.C. § 3553(a); and
ii. that the Court improperly based the sentence on facts neither found by a jury nor admitted by Arroyo;
f. his appellate counsel failed to file a petition for a writ of certiorari in anticipation of the holding in Gall v. United States, 552 U.S. 38, 47 (2007);
g. his trial and appellate counsel represented Arroyo while having an actual conflict of interest; and
h. his trial and appellate counsel's cumulative error is considered.
2. Arroyo's conviction and sentence violated:
a. his First Amendment right to free speech and to petition the government;
b. his Fourth Amendment right to be free of unreasonable search and seizure;
c. his Fifth Amendment right to due process of law;
d. his Sixth Amendment rights to effective assistance of counsel (as set forth above), to a jury trial, to confront his accusers, to present a defense, to compulsory process; and
e. his Eighth Amendment right to be free of cruel and unusual punishment. Arroyo also asks for discovery and for a hearing on his § 2255 ...