The opinion of the court was delivered by: James F. Holderman Chief Judge, United States District Court
MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, Chief Judge
Petitioner Kalonji McMillian has filed a "Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" under 28 U.S.C. § 2255 (Dkt. No. 1). The government has responded and, for the reasons set forth below, petitioner McMillian's motion is denied.
On July 26, 2001, a federal grand jury charged Kalonji McMillian ("McMillian") and his co-defendants, Raymond Cooper ("Cooper") and Sedgwick Johnson ("Johnson"), with one count of conspiracy to possess with intent to distribute and to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846, one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). United States v. Cooper, 01 CR 543 (N.D. Ill.) (Dkt. No. 17). All three defendants pleaded not guilty and proceeded to trial before a jury.
The facts, as presented at trial, are as follows:
The government's case against the defendants stems from the June 5, 2001 arrest of an individual named Jason Rauner ("Rauner"), who was arrested when he attempted to sell approximately one kilogram of cocaine to a confidential source. While in custody, Rauner named Cooper as his supplier and agreed to cooperate with law enforcement officials by arranging to receive a future delivery of cocaine from Cooper.
From June 6, 2001, through June 8, 2001, law enforcement officials recorded numerous telephone calls between Rauner and Cooper, and voicemail messages left by Cooper on Rauner's phone, as Rauner and Cooper negotiated the specifics of the upcoming drug sale.*fn1 At trial, Rauner testified that he and Cooper arranged for Cooper to supply Rauner with one kilogram of powder cocaine and one kilogram of crack cocaine. Cooper told Rauner that McMillian, known as "TuTu," would be the individual responsible for cooking the cocaine into crack.
On June 8, 2001, at approximately 12:30 p.m., law enforcement officials observed McMillian arriving at Cooper's residence, retrieving a white plastic bag with black markings from the trunk of his car, and then walking with Cooper into Cooper's house. Although not recorded on video surveillance, McMillian left Cooper's house about one hour later; he did not have the white plastic bag with him at that time.
Later that day, at approximately 2:15 p.m., Cooper met with Rauner in the parking lot of a Sleep Inn.*fn2 Cooper invited Rauner to come to Cooper's residence to watch McMillian cook the cocaine, but Rauner declined. Cooper also confirmed that Rauner wanted one kilogram of powder cocaine and one kilogram of crack cocaine, and he informed Rauner that, according to McMillian, the cooking process would take about an hour. At approximately 6:18 p.m. on June 8, 2001, Cooper returned to the parking lot of the Sleep Inn*fn3 and delivered the drugs to Rauner. When Rauner asked how much he owed McMillian for cooking the cocaine into crack, Cooper told him the fee was $500.
Officer Todd Arthur of the Cook County Sheriff's Office ("Officer Arthur") testified that, after Rauner's meeting with Cooper on the evening of June 8, 2001, Officer Arthur retrieved a white plastic bag with black markings from the floor of the front passenger side of Rauner's vehicle containing a brick of suspected powder cocaine wrapped in clear cellophane, two clear ziplock bags containing suspected crack cocaine, and a third bag containing suspected crack cocaine. The defendants each stipulated that the substances found in the white plastic carrying bag were, in fact, approximately one kilogram of powder cocaine and slightly more than one kilogram of cocaine base. Government expert Mary Beth Thomas testified that McMillian's fingerprint was found on one of the ziplock bags containing cocaine base.
At the conclusion of the trial, the jury found each defendant guilty on all three counts charged in the indictment. (01 CR 543, Dkt. Nos. 82-84.) McMillian was sentenced on January 30, 2003. McMillian timely appealed and argued that insufficient evidence existed to support his conviction and that his sentence violated the Sixth Amendment pursuant to United States v. Booker, 543 U.S. 220 (2005). See United States v. Johnson, No. 03-1323 (7th Cir. May 4, 2005) ("7th Cir. May 4, 2005 Order"). The Seventh Circuit rejected McMillian's insufficiency of the evidence argument; however, it ordered a limited remand of the defendants' sentences pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). This court advised the Seventh Circuit that it would reimpose the same sentences, and on June 1, 2007, the Seventh Circuit affirmed the defendants' sentences. (01 CR 543, Dkt. No. 156); United States v. Johnson, 240 F. App'x 131 (7th Cir. 2007). McMillian filed a petition for certiorari with the Supreme Court of the United States, which was denied on October 9, 2007.On October 10, 2008, McMillian timely filed the pending § 2255 motion.
Under § 2255, "[a] prisoner in custody under sentence of a [federal] court . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon." 28 U.S.C. § 2255(b).
Generally, claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review under § 2255 in the absence of cause and prejudice. Massaro v. United States, 538 U.S. 500, 504 (2003). However, the ineffective assistance of appellate counsel may constitute the "cause" for failure to raise a claim on direct appeal. Stone v. Farley, 86 F.3d 712, 716 (7th Cir. 1996). Furthermore, an ineffective assistance of trial counsel claim may be raised for the first time on collateral review. Massaro,538 U.S. at 509.
McMillian argues in his § 2255 motion that his conviction should be vacated, or alternatively, that his sentence should be reduced. He states three reasons in support of his argument: (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, and (3) abuse of discretion by the trial judge. For the reasons stated below, the court finds that McMillian is not entitled to relief under § 2255, and his motion is therefore denied without a hearing.
I. Ineffective Assistance of Trial Counsel
McMillian asserts that he received ineffective assistance of counsel at trial because his attorney failed to do the following: (1) object to the audiotapes used against him at trial on the grounds that they contained hearsay statements, (2) object to the use and admission of these same audiotapes and the use of their corresponding transcripts on the grounds that the tapes were inaudible and the transcripts inaccurate, (3) properly cross examine several witnesses, (4) object to statements made by the government's attorney during closing arguments, and (5) raise either a "timeline" or a "mere presence" defense. ...