The opinion of the court was delivered by: Wayne R. Andersen District Judge
MEMORANDUM OPINION AND ORDER
This matter comes before the court on the petition of Troy Lawrence ("Petitioner" or "Lawrence"), as a prisoner in federal custody, for a writ of habeas corpus to correct his sentence pursuant to 28 U.S.C. §2255. For the reasons set forth below, the petition is denied.
On July 16, 2002, Lawrence was charged with the following counts in a multi-count indictment: (Count 1) conspiracy to distribute and posses with intent to distribute controlled substances within 1000 feet of an elementary school, in violation of 21 U.S.C. §§ 841(a)(1), 860, and 846; (Counts 11, 16, 21, 22, 23, 27, 28, and 36) use of a communication facility to carry out a drug distribution conspiracy, in violation of 21 U.S.C. § 843(b); (Count 2) money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(I); (Counts 19 and 26) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (Counts 17, 24, 37, and 38) possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1); (Count 35) attempted possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1); and (Counts 18 and 25) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (B). (Dkt. No. 172 in case 02 CR 200).
A jury trial commenced on September 16, 2003. (Dkt. No. 540 in case 02 CR 200). The evidence the government presented at trial included intercepted phone calls originating from and involving Petitioner, text messages originating from and involving Petitioner, and testimony by several cooperating defendants. (Government's Resp. at 3). A jury found Petitioner guilty on December 18, 2003 of Counts 1, 11, 16, 17, 18, 21, 23, 24, 25, 26, 27, 35, 36, 37, and 38. (Dkt. No. 667 in case 02 CR 200).) The jury found Petitioner not guilty with respect to Count 28, and the Court dismissed Counts 2 and 22 against Petitioner. (Id.)
Petitioner made several motions before, during, and after the trial. One item that was the subject of multiple motions was the recording of intercepted calls. Petitioner filed motions to preclude these recordings on July 24, 2003 and September 21, 2003 (Dkt. Nos. 487 and 545, respectively, in case 02 CR 200), and he requested a hearing on this issue on October 28, 2003 (Dkt. No. 593 in case 02 CR 200). Petitioner made various arguments, objecting to the content of the captured conversations as well as the manner in which the recordings were handled. All three of the aforementioned motions were denied. (Dkt. Nos. 529 and 847 in case 02 CR 200).
Petitioner filed a motion for a new trial on February 3, 2004. (Dkt. No. 703 in case 02 CR 200). In that motion, Petitioner renewed all objections previously made, adopted all motions and objections made by his co-defendants, and argued that various errors had been made by the court, and that the evidence presented was insufficient to support a guilty verdict. The government responded on February 7, 2005, and Petitioner's motion for a new trial was denied on June 29, 2005. (Dkt. Nos. 796, 847 in case 02 CR 200).
Petitioner filed a motion to dismiss due to lack of jurisdiction on October 11, 2005 (Dkt. No. 952 in case 02 CR 200), and a supplement to his motion to suppress the Title III interceptions on October 18, 2005 (Dkt. No. 959 in case of 02 CR 200), both of which were denied on January 27, 2006 (Dkt. Nos. 1024, 1025 in case of 02 CR 200). Petitioner proceeded to file objections to the Court's memorandum, which were subsequently denied. (Dkt. Nos. 1031, 1032 in case 02 CR 200).
Petitioner filed a notice of appeal with the Seventh Circuit on March 8, 2006 (Dkt. No. 1036 in case 02 CR-200), and the appeal was dismissed for lack of jurisdiction. (Dkt. No. 1057 in case 02 CR 200). Petitioner filed a motion for leave to appeal his conviction on May 16, 2006. (Dkt. No. 1062 in case 02 CR 200), which was denied on May 19, 2006. (Dkt. No. 1067 in case 02 CR 200).
Petitioner was sentenced to life imprisonment on June 14, 2006. (Dkt. No. 1079 in case 02 CR 200). Petitioner filed a request to correct his sentence on June 23, 2006, citing a lack of jurisdiction (Dkt. No. 1082 in case 02 CR 200), which was denied on June 28, 2006. (Dkt. No. 1083 in case 02 CR 200).
Petitioner filed a notice of appeal on June 21, 2006 (Dkt. No. 1076 in case 02 CR 200). Petitioner argued, along with other co-defendants, that his Sixth Amendment rights were violated because no individualized findings about drug quantity were made by the jury or by the district court. (Dkt. No. 1226 in case 02 CR 200). On March 24, 2008, the Seventh Circuit affirmed Petitioner's sentence. (Dkt. No. 1227 in case 02 CR 200).
Petitioner filed the instant petition to vacate, set aside, or correct his sentence on November 17, 2009. The government filed its response on March 26, 2010. (Dkt. No. 10 in case 09 CV 7213). Petitioner twice requested that the deadline for his reply be extended, and both of those requests were granted, ultimately extending Petitioner's reply deadline to July 9, 2010. (Dkt. Nos. 11, 12, 13, 14 in case 09 CV 7213). The court noted that the extension to July 9, 2010 would be the final extension. To date, Petitioner has not filed a reply, nor has he submitted another request for additional time.
STANDARD OF REVIEW UNDER 28 U.S.C. §2255
The federal habeas corpus statute, 18 U.S.C. §2255, provides that: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
The court should grant a hearing on the issues raised in the petition unless the respondent demonstrates conclusively that the petitioner is not entitled to any form of relief. 28 U.S.C. § 2255. The court must grant a hearing if the habeas petition "alleges facts that, if proven, would entitle" the petitioner to relief. Stoia v. United States, 22 F.3d 766, 768 (7th Cir. 1994) (citing Pittman v. Warden, Pontiac Correctional Ctr., 960 F.2d 688, 691 (7th Cir. 1992)). The petitioner must make specific, detailed allegations in order to qualify for a hearing; conclusory statements are insufficient. See Daniels v. United States, 54 F.3d 290, 293-94 (7th Cir. 1995). Petitions filed by pro se petitioners will be held to a more liberal standard than those filed by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Even under this more liberal standard, however, no hearing is required if the record conclusively demonstrates that the Petitioner is not entitled to any form of relief. Daniels, 54 F.3d at 293.
Petitioner makes twelve arguments in his petition to vacate his sentence, including: (i) constitutionality of the Controlled Substance Act of 1970, (ii) lack of a on-going single conspiracy, (iii) violation of his Sixth Amendment rights, (iv) erroneously imposed mandatory life sentence, (v) violation of the Equal Protection Clause, (vi) erroneous jury instructions in violation of Due Process rights, (vii) violation of the Speedy Trial Act, (viii) deprivation of his right to counsel of choice, (ix) insufficient evidence, (x) improper preservation of wiretap evidence, (xi) admission of improper and prejudicial testimony, and (xii) deprivation of effective assistance of counsel.
I. Constitutionality of the Controlled Substances Act of 1970
Petitioner argues his convictions, except for Count 26, should be vacated because the Controlled Substances Act of 1970 ("CSA") is facially unconstitutional. Petitioner argues the CSA is unconstitutional because it does not "contain an express jurisdictional element to establish the existence of a proper federal nexus on a case-by-case basis." (Pet.'s Mot. to Vacate at 2.) This argument lacks merit. Congress has the power to regulate the distribution of cocaine without requiring proof in each prosecution of some connection with interstate commerce. United States v. Esposito, 492 F.2d 6, 10 (7th Cir. 1973). The CSA is a valid exercise of Congress' power under the Commerce Clause. United States v. Westbrook, 125 F.3d 996, 1009 (7th Cir. 1997).
The petition is denied with respect to this first ground raised by Petitioner.
II. Single On-Going Conspiracy
Petitioner alleges he was not part of a single on-going conspiracy, but instead multiple conspiracies, if any, from the early 1990's through 2002. (Pet.'s Mot. to Vacate at 3.) As a result Petitioner claims his conviction should be vacated as the vast majority of the government's case is outside the five-year statute of limitations (18 U.S.C. §3282). Id. Petitioner alleges the evidence presented at trial did not support the conclusion of one on-going conspiracy.
A jury's factual determination will be upheld if any rational juror could have made the finding when viewing evidence in light most favorable to the government. United States v. Bullis, 77 F.3d 1553, 1560 (7th Cir. 1996). In this case, while the conspiracy changed locations from Wentworth Gardens to Claude Court, the main participants, including Petitioner, remained the same. A slight variation in the method used to execute the scheme does not indicate that one conspiracy has ended and that another has begun. United States v. Lynch, 699 F.2d 839, 843 (7th Cir. 1983).
The petition is denied with respect to this second ground raised by Petitioner.
III. Sixth Amendment Violations
Petitioner alleges inadmissible testimony was admitted against him at trial, and he claims violations of his rights under the Sixth Amendment as he was not afforded the opportunity to confront certain witnesses, and statements made by co-defendants were improperly admitted at trial in violation of the law under Bruton v. United States, 391 U.S. 123 (1968). (Pet.'s Mot. to Vacate at 3.) Bruton concerns how out-of-court confessions by a non-testifying co-defendant can be introduced at ...