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 Spencer H. Harris' Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1) (Petition) and his Motion to Amend Petition (d/e 4). The Court allows the Motion to Amend the Petition. The Court determines, though, that an evidentiary hearing is not necessary. For the reasons set forth below, the Petition, as amended, is denied.
On August 3, 2006, a grand jury indicted Harris on the charge of distribution of five or more grams of a mixture or substance containing cocaine base ("crack"), in violation of 21 U.S.C. § 841(b)(1)(B) (Count 1).
United States v. Harris, C.D. Ill. Case No. 06-30058 (Criminal Case), Indictment (Case No. 06-30058 d/e 6). Harris pleaded not guilty. Criminal Case, Minute Entry entered August 9, 2006.
On September 8, 2006, a grand jury issued a superseding indictment, adding three additional charges: possession of five or more grams of a mixture or substance containing cocaine base ("crack") with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count 2); felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2) (Count 3); and possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(I) (Count 4). Criminal Case, Superseding Indictment (Case No. 06-30058 d/e 14). The charge in Count 4 carried a mandatory sentence of 60 months, to run consecutively to any sentence imposed on the other charges. 18 U.S.C. § 924(c). Harris pleaded not guilty to the additional charges, and the Court set the matter for jury trial on October 3, 2006. Criminal Case, Minute entry entered September 14, 2006.
On September 27, 2006, the Government filed a notice that it intended to seek to admit evidence at trial of other crimes committed by Harris under Federal Rule of Evidence 404(b). Criminal Case, Government's Notice of Intention to Use Other Crimes, Wrongs, or Acts Evidence and Statements Given by the Defendant (Case No. 06-30058 d/e 9). On September 28, 2006, Harris' defense counsel Stanley Wasser filed a Motion in Limine to bar this evidence. Criminal Case, Defendant's Motion in Limine No. 1 (Incorporating Defendant's Response to Government's 404(b) Notice) (Case No. 06-30058 d/e 11).
On September 29, 2006, attorney Wasser spoke with the prosecutor, Assistant U.S. Attorney Patricia McInerney. McInerney presented a proposed Plea Agreement. If Harris would agree to plead guilty to a powder cocaine charge and a § 924(c) gun charge, McInerney would not file a notice of a prior felony drug trafficking conviction. Without the notice, Harris would face a statutory maximum sentence on the proposed powder cocaine charge of 20 years, plus a mandatory 5 years on the § 924(c) gun charge.
21 U.S.C. § 841(b)(1)(B); 18 U.S.C. § 924(c)(1)(A). If the notice of a prior conviction was filed, the maximum sentence on the current crack cocaine charges would increase to life. 21 U.S.C. §§ 841(b)(1)(B) & 851. Wasser estimated that, if Harris accepted the plea offer, his sentence at the low end of the applicable sentencing guideline range would be168 months on Count 1, plus 60 months on Count 4, for a total of 228 months. Response to Motion Under 28 U.S.C. § 2255 (d/e 7)(Response), Exhibit 2, Affidavit of Stanley Wasser (Wasser Affidavit), ¶ 8.
Wasser met with Harris on October 1, 2006. Wasser began to discuss the plea offer. Harris told Wasser that he had no interest in any plea and that he wanted to go to trial. On October 3, 2006, Wasser met with Harris again. At that time, Wasser handed Harris a six-page letter in which Wasser set forth an evaluation of Harris' case, including an evaluation of the plea offer. Wasser estimated the likely sentencing range if Harris was convicted of any of the charges at trial. Wasser recommended accepting the plea offer. Harris never spoke to Wasser about accepting the plea offer or discussing the offer further. Wasser Affidavit, ¶¶ 10-13.
The Court held a hearing on the Motion in Limine on October 3, 2006. The Motion was allowed in part and denied in part. Criminal Case, Minute Entry entered October 3, 2006.
On October 4, 2006, the grand jury issued a Second Superseding Indictment, charging Harris with an additional count of distribution of cocaine, in violation of 21 U.S.C. § 841(b)(1)(C) (Count 5). Criminal Case, Second Superceding Indictment (Case no. 06-30058 d/e 14). Harris pleaded not guilty to this charge also. The Government also filed the notice of prior convictions. Criminal Case, Information Regarding Prior Felony Drug Conviction (Case No. 06-30058 d/e 13). Criminal Case, Minute Entry entered October 4, 2006.
Harris' trial began on October 4, 2006. At the end of the trial, on October 10, 2006, the jury found Harris guilty of all charges. Criminal Case, Jury Verdict (Case No. 06-30058 d/e 16). On October 12, 2006, attorney Wasser moved to withdraw as counsel for Harris and to extend the time for Harris to file post-trial motions. Criminal Case, Motion of Defendant's Counsel to Withdraw from Representation (Case No. 06-30058 d/e 18); Criminal Case, Defendant's Motion for Extension of Time to File Motions Under rule 29 and 33 (Case No. 06-30058 d/e 19). The Court allowed the motions at a hearing on October 18, 2006. The Court initially appointed attorney Ronald Stone to represent Harris, but attorney Stone withdrew because of a conflict of interest. The Court then appointed attorney Babette Salus. Criminal Case, Text Order entered October 20, 2006. Attorney Salus ...