The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This matter comes before the Court on Petitioner Robert A. Hearn's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody, And Supporting Memorandum Of Law (d/e 1) (Petition), and his two motions, both entitled ADDENDUM To Movant's Motion Under 28 U.S.C. § 2255, and MOTION TO STAY PROCEEDINGS (d/e 8 & 9) (Motions to Stay). For the reasons set forth below, the Petition and the Motions to Stay are denied.
On May 5, 2006, a grand jury indicted Hearn, charging him with one count of possession with intent to distribute five or more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). The Government claimed that Hearn possessed 11 grams of crack cocaine and 15.4 grams of powder cocaine that he intended to distribute. United States v. Hearn, 534 F.3d 706, 708 (7th Cir. 2008) (Hearn I), rehearing allowed, United States v. Hearn, 549 F.3d 680 (7th Cir. 2008) (Hearn II).
On May 17, 2006, Hearn met with his attorney Douglas Beevers. Beevers told Hearn that, as a career offender, he faced a possible sentence of 360 months to life if he went to trial. If Hearn pleaded guilty, Beevers told him that he faced a sentence of 262-327 months imprisonment. Beevers told Hearn that he could reduce that sentence if he cooperated. Hearn decided to cooperate. Hearn I, 534 F.3d at 708.
Hearn made a proffer to the Government on May 25, 2006. During the proffer session, Hearn stated that he had been dealing powder and crack cocaine since 1997. Hearn told the officers about two of his suppliers. Hearn hoped to secure his release in order to try to arrange controlled buys for the Government from the two suppliers. The Government, however, did not offer to release him. Id.
Hearn then made four telephone calls from the jail to his girlfriend and a friend named "Little G." The calls were recorded. During the calls, Hearn tried to convince Little G to sign a statement claiming that he owned the drugs that formed the basis for the current charges against Hearn. Little G ultimately decided not to sign the statement. Hearn's efforts to fabricate evidence to secure his release, however, also ended his cooperation. Id. Hearn's case went to trial.
Prior to trial, Hearn sought to exclude the statements made during the proffer. This Court excluded the statements, except that the Government could use a statement in the proffer if Hearn took a position at trial contrary to that specific statement. The Court also held that the Government could use the statements to impeach Hearn should he take the stand and testify contrary to the statements in the proffer. Id.
Hearn also moved pre-trial to introduce evidence of attorney Beevers' advice regarding the sentences he might face without cooperation. Hearn wanted to introduce this evidence to explain his state of mind during his proffer session with the Government. Hearn wanted to argue that he had motive to exaggerate his involvement in the drug business in his proffer. The Court allowed the motion, but warned that the introduction of this evidence would open the door to introduce evidence that Hearn would be sentenced as a career offender should he be convicted. Id. at 709.
On July 24, 2006, the Government filed a notice that it intended to introduce evidence of Hearn's March 12, 2003, state court conviction for distribution of cocaine. The Court allowed the motion. The Court held that the conviction was admissible as probative of Hearn's knowledge, lack of mistake and intent to distribute cocaine pursuant to Federal Rule of Evidence 404(b). The Court further noted that Hearn already intended to introduce evidence that he was a career offender. Id. The 2003 conviction was part of the basis for his status as a career offender. Hearn had two prior drug convictions, the 2003 conviction and a conviction in 1999. He also had a conviction for escape. United States v. Hearn, C.D. Ill. Case No. 06-30040, Presentence Investigation Report (Case No. 06-30040 d/e 69), ¶¶ 20, 29, 33, 35.
Hearn now says that he was actually innocent of the 2003 state drug conviction. He states that he pleaded guilty to protect his cousin Jesse Knighton. He states that he told attorney Beevers that he was actually innocent of the 2003 conviction. Attorney Beevers did not challenge the validity of the 2003 conviction or raise Hearn's claim of actual innocence before the Court or in state court. Petition, Exhibits A, Affidavit of Jesse Knighton III, and Exhibit B, Affidavit of Robert Hearn.
At trial, Hearn chose to take the stand in his own defense. He claimed that he was an innocent bystander and the drugs were not his. He explained that he decided to cooperate, and later tried to convince Little G to take the blame, because he thought that a black man with two prior convictions would be convicted regardless of his innocence. Hearn I, 534 F.3d at 710-11. Hearn admitted that he told the agents that he had been dealing drugs since 1997. He testified that his drug dealing ended when he went to prison in 2003. Id. at 711. Hearn also stipulated at trial that he pleaded guilty to the 2003 conviction and that the case involved distribution of crack cocaine. Id. at 713. At the close of trial, the jury found Hearn guilty of the charges. On March 16, 2007, this Court sentenced Hearn as a career offender to 360 months imprisonment. Id. at 711.
Hearn then appealed. While the case was pending on appeal, the Supreme Court decided Kimbrough v. United States, 552 U.S. 85 (2007). The Kimbrough decision held that the district courts had the discretion, when sentencing individuals convicted of trafficking in crack cocaine, to consider the disparity in Sentencing Guidelines between crack and powder cocaine. In light of the decision in Kimbrough, the Seventh Circuit affirmed the conviction, but remanded the case for resentencing. Hearn I, 534 F.3d at 714-15.
Hearn's appellate counsel Shane Brunner and the Government both filed motions for rehearing. Attorney Brunner asked for a rehearing because the Hearn I opinion incorrectly stated that Hearn opined that a heavy crack user would use 11 grams of crack in a few days. Hearn II, 549 F.3d at 682. The Government asked for a rehearing because Hearn's sentence was controlled by the fact that Hearn was a career offender rather than the disparity between crack and powder. Hearn now states that he instructed attorney ...