The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Ryan Stein's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The government responded to the motion (Doc. 4), and Stein replied to that response (Doc. 5).
On June 9, 2005, Stein was indicted and arraigned on one count of conspiring to manufacture and distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. After Stein's initial representation at the arraignment by an assistant federal public defender, attorney Eric Butts was appointed to represent Stein. On July 22, 2005, the government filed an information pursuant to 21 U.S.C. § 851 notifying Stein it would be seeking enhanced penalties by virtue of a prior felony drug conviction.
Shortly thereafter, Stein retained attorney Paul Christenson and the Court allowed Butts to withdraw from the case. On July 7, 2006,*fn1 the government made a motion to disqualify Christenson on the grounds that he had represented Shane Clutts, one of Stein's co-defendants, in a related state case and that Clutts would testify against Stein at his federal trial. Stein was willing to waive any conflict of interest, but Clutts was not. On August 16, 2006, the Court held a hearing on the motion at which Stein confirmed his waiver of a conflict. Nevertheless, the Court granted the motion, disqualified Christenson and allowed Stein time to retain new counsel. Jeffery Green entered his appearance for Stein several weeks later.
Stein's case was tried to a jury and on November 15, 2006, the jury returned a guilty verdict along with a special verdict finding that the amount of methamphetamine involved in the offense exceeded 50 grams. At trial, Clutts testified against Stein, and Stein presented no evidence in his defense.
On March 1, 2007, the Court held a sentencing hearing at which Stein's counsel objected to the presentence investigation report's ("PSR") relevant conduct finding of approximately 900 grams of methamphetamine. In weighing this objection, the Court considered the trial testimony of Clutts, Bernard Kevin Bruce and others, a report of an interview with Clutts, and a law enforcement officer's testimony about an interview with Rodney Kimes. In his cross-examination of the officer and his argument to the Court, Green attempted to show Kimes' statements were unreliable because of Kimes' criminal history and potential bias and because of the statements' incompleteness, lack of specificity and implausibility.
The Court found by a preponderance of the evidence that Stein's relevant conduct was at least 500 grams but less than 1.5 kilograms of methamphetamine, which under U.S.S.G. § 2D1.1*fn2 yielded a base offense level of 32. In light of Stein's criminal history category of III, his guideline sentencing range was 151 to 188 months in prison. However, he was subject to a statutory minimum sentence of 240 months based on his relevant conduct finding. See 21 U.S.C. § 841(b)(1)(A). The Court sentenced Stein to serve 240 months in prison, below the statutory maximum life sentence established by the jury's verdict and the § 841 information. See 21 U.S.C. § 841(b)(1)(B).
On March 2, 2007, Stein appealed to the Seventh Circuit Court of Appeals. In his appeal he argued that the evidence upon which the Court based its relevant conduct finding -- the testimony and statements provided by Clutts, Bruce and Kimes -- was unreliable. On December 14, 2007, the Court of Appeals affirmed Stein's conviction and sentence, and on January 7, 2008, it issued its mandate. See United States v. Stein, 258 Fed. App'x 7 (7th Cir. 2007).
Stein filed a petition for a writ of certiorari from the Supreme Court, which was denied on May 27, 2008. See Stein v. United States, 128 S.Ct. 2523 (2008).
Stein mailed this § 2255 motion on May 26, 2009. Under the mailbox rule of Houston v. Lack, 487 U.S. 266, 276 (1988), his motion was timely filed. In the motion, he argues that his counsel was constitutionally ineffective in violation of his Sixth Amendment right to effective assistance of counsel in a variety of ways:
1. Counsel failed to advise him of the relevant facts and law regarding his decision whether to plead guilty or go to trial. Specifically, he argues his counsel failed to ask him about his prior convictions, to advise him about the likelihood of the government's filing an enhancement under 21 U.S.C. § 851 in light of those convictions, the consequences of such an enhancement and the impact of a plea on his possible sentence. He also faults his counsel for failing to advise him that there was overwhelming evidence against him and that he was likely to be convicted. He claims that if he had been properly advised, he would have pled guilty.
2. Counsel failed to file a motion to suppress evidence material to his conviction and sentencing and a motion to dismiss the indictment.
3. At trial, counsel failed to investigate and present exculpatory evidence and to object to admission of the government's improper evidence.
4. Counsel failed to request appropriate jury instructions and to object to the government's instructions. He also alleges his counsel failed to object to improprieties in the government's closing argument and ask for a curative instruction.
5. At sentencing, counsel failed to investigate and present evidence and legal argument and to object to admission of the government's improper evidence. Specifically, counsel failed to present evidence or legal argument showing that the evidence used to establish relevant conduct was unreliable.
6. Counsel failed to move for a downward departure under U.S.S.G. § 5G1.3(c) or recommend the Bureau of Prisons award credit for time served on a related state case. Counsel further did not move for a downward variance under 18 U.S.C. § 3553(a).
7. Counsel failed to investigate and present the strongest issues on appeal and failed to preserve issues for collateral attack.
8. Counsel has a conflict of interest at all stages of the proceedings.
9. Counsel's cumulative error prejudiced him.
Stein also argues his conviction and sentencing violated his First Amendment rights to free speech and to petition the government, his Second Amendment rights, his Fourth Amendment right to be free of unreasonable search and seizure, his Fifth Amendment right to due process, his Sixth Amendment rights to counsel, to a jury trial, to confront witnesses, to present a defense and to ...