The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Jason B. Dale's ("Dale") motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The government has responded to the motion (Doc. 14), and Dale has replied to that response (Doc. 20).
On November 9, 2005, Dale was indicted on one count of conspiring to manufacture and distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.
Dale was represented at all relevant parts of the district court proceedings by attorney Jonathan A. Mitchell. On May 4, 2006, Dale pled guilty without a written plea agreement but was allowed to remain free on bond. However, before the sentencing date, the Court revoked Dale's bond based on his consumption of alcohol and his contact with and threats to kill Maria Winchester, a potential witness in his case, at a Pasta House restaurant.
On August 3, 2006, the Court held a sentencing hearing at which Dale's counsel objected to four recommendations in the presentence investigation report ("PSR"): (1) the application of an enhancement under United States Sentencing Guideline Manual*fn1 ("U.S.S.G.") § 2D1.1(b)(1) for possession of a dangerous weapon during the commission of the offense, (2) the inapplicability of the safety valve provision of U.S.S.G. § 5C1.2, (3) the application of an enhancement for obstruction of justice under U.S.S.G. § 3C1.1 and (4) the inapplicability of the reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b). Dale confirmed on the record that these were his only four objections to the PSR and that, after talking with Mitchell, he was withdrawing the first, his challenge to the weapon enhancement.
The Court heard testimony from six government witnesses, including Winchester, and two defense witnesses. Chandra Shively, a third defense witness, took the stand but chose to assert her Fifth Amendment right against self-incrimination. Based on this testimony, the Court found by a preponderance of the evidence that Dale's relevant conduct was at least 3,000 kilograms but less than 10,000 kilograms of marihuana equivalency units (based on a combination of methamphetamine and crystal methamphetamine), which under U.S.S.G. § 2D1.1 yielded a base offense level of 34. The Court also found by a preponderance of the evidence that Dale possessed a dangerous weapon during the commission of his offense, which increased his offense level by two points under U.S.S.G. § 2D1.1(b)(1) and prevented him from benefitting from the safety valve under U.S.S.G. § 5C1.2, and that Dale obstructed justice when he threatened Winchester, which increased his offense level by two points under U.S.S.G. § 3C1.1. The Court further found Dale was entitled to a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b), yielding a total offense level of 35. In light of Dale's criminal history category of I, his sentencing range was 168 to 210 months in prison. The Court sentenced Dale to serve 180 months in prison.
On August 16, 2006, Dale appealed to the Seventh Circuit Court of Appeals, where attorney Jeffrey Brandt represented Dale. In his appeal he argued that the Court erred in imposing the obstruction of justice enhancement and that his sentence was unreasonable in light of 18 U.S.C. § 3553(a). On August 17, 2007, the Court of Appeals affirmed Dale's conviction and sentence, and on September 10, 2007, it issued its mandate. See United States v. Dale, 498 F.3d 604 (7th Cir. 2007). Dale did not petition the Supreme Court for a writ of certiorari. Dale filed this timely § 2255 motion on June 9, 2008. In it, he argues that his trial and appellate counsel were constitutionally ineffective in a variety of ways:
1. trial counsel failed to object to the admission of hearsay at the sentencing hearing;
2. trial counsel failed to conduct a reasonable investigation into the available testimony of Pam Gregory, an eyewitness to the alleged threats to Winchester upon which the obstruction of justice enhancement was based, and Mike Rednour, an eyewitness to alleged threats and violence against government witness Rebecca Riley;
3. trial counsel failed to call Gregory and Rednour at sentencing, though they were available and allegedly more powerful than the witnesses called, and failed to investigate Pasta House patrons who could have witnessed the alleged threat to Winchester;
4. trial counsel failed to conduct pre-trial discovery, file a motion to suppress and effectively cast doubt on or object to witnesses' testimony regarding Dale's possession of a gun;
5. trial counsel improperly induced Dale to withdraw his objection to the weapon enhancement;
6. trial counsel failed to investigate the prosecution's evidence to discover exculpatory evidence and failed to pursue a mental health defense to the charge;
7. trial counsel failed to object to the weapon enhancement based on Dale's father's possession of the weapon;
8. trial counsel failed to present a defense of voluntary intoxication to the obstruction of justice enhancement when the defense was clearly discernable from the facts in the PSR;
9. trial counsel failed to object to James Garner's testimony regarding Dale's possession of a gun and to argue the gun was not connected to the offense of conviction;
10. trial counsel failed to investigate Dale's defense of diminished capacity;
11. appellate counsel failed to argue a voluntary intoxication or mental health defense;
12. appellate counsel failed to make a claim of ineffective assistance of trial counsel;
13. appellate counsel failed to move for a re-hearing before the Court of Appeals; and
In response, the government argues that counsel was not constitutionally ineffective as Dale alleges. In reply, Dale argues for the first time that his trial counsel was ineffective for allowing the Court to sentence Dale based on unreliable information in violation of his due process ...