The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This matter comes before the Court on Petitioner Ernest E. Lewis' Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1) (Petition). For the reasons set forth below, the Petition is denied.
On November 2, 2007, law enforcement officers observed Lewis and his pregnant fiancé Andrea Jenkins driving in a rural wooded area in Adams County, Illinois. The officers knew that Lewis had been arrested for manufacturing methamphetamine in the past. Lewis pulled his vehicle to the side of the road and stopped. The officers approached Lewis' vehicle and asked if he needed assistance. The officers could smell anhydrous ammonia coming from the vehicle. Anhydrous ammonia is used in the manufacture of methamphetamine. Lewis said that he did not need assistance and drove off. Law enforcement officers followed Lewis and made a traffic stop for failing to signal when Lewis pulled into a driveway. Lewis denies that he failed to signal. Answer of Respondent (d/e 4) (Answer), Exhibit 1, Criminal Complaint, attached Affidavit of Matt McElfresh (McElfresh Affidavit), ¶ 4; Answer, Exhibit 5, Transcript of Proceedings on December 30, 2008 (Motion Transcript), at 46.
Upon stopping the vehicle, the officers smelled anhydrous ammonia. The officers asked for permission to search the vehicle, but permission was denied. A drug sniffing dog was brought to the scene. The dog alerted on the vehicle. The officers searched the vehicle and found material used in manufacturing methamphetamine. The officers arrested Lewis and searched him. They found a bag in his pocket that contained a white substance that field-tested positive for methamphetamine. McElfresh Affidavit, ¶ 4.
On November 2, 2007, Lewis waived his Miranda rights and admitted owning the items found in the vehicle and admitted that he intended to manufacture methamphetamine with the items. The officers also interviewed Jenkins on November 2, 2007. She admitted purchasing pseudoephedrine pills for Lewis to be used in the manufacture of methamphetamine. She also admitted helping Lewis manufacture methamphetamine. Adams County drug store records showed that Lewis purchased pseudoephedrine pills from April 2007 to November 2007. McElfresh Affidavit, ¶¶ 5-7.
Lewis was arrested on state charges. An Adams County public defender was appointed to represent him. The Adams County public defender told Lewis that she believed he had a basis to seek to suppress the evidence found at the traffic stop. Motion Transcript, at 6-7. She never filed the motion, however, because federal prosecutors decided to pursue an indictment in federal court against Lewis based on these events. The state case was dropped at that time.
On April 1, 2008, a federal grand jury indicted Lewis, charging him with possession of a listed chemical with the intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1). Assistant Federal Public Defender Robert J. Scherschligt was appointed to defend Lewis.
Scherschligt met with Lewis several times. During these conversations, Scherschligt recommended that Lewis cooperate. At one point, Scherschligt presented Lewis with a cooperation agreement. Motion Transcript, at 9-10. Lewis asked about moving to suppress the evidence. Lewis believed that the traffic stop was illegal because he, in fact, used his turn signal. Scherschligt advised against filing a motion because Scherschligt thought that the motion was meritless. Scherschligt believed that the officers had probable cause to search the vehicle when they smelled anhydrous ammonia the first time, or at least probable cause to detain him until the drug sniffing dog could be brought to the scene to search around the vehicle. Motion Transcript, at 67, 75. Scherschligt also was concerned because the prosecutor might refuse to allow Lewis to cooperate if he filed a meritless motion. Motion Transcript, at 38, 70.
Lewis asked Scherschligt to interview Jenkins. Motion Transcript, at 21.
Lewis believed that Jenkins would change the story that she told the officers on November 2, 2007. Jenkins had indicated to Lewis and others that she did not tell the complete truth in the interview. Scherschligt listened to the recording of the interview conducted by law enforcement officials, but did not speak to Jenkins directly. Motion Transcript, at 80, 87.
Scherschligt also told Lewis that Scherschligt estimated the low end of the applicable Sentencing Guideline range to be 151 months imprisonment. Scherschligt told Lewis that there was no guarantee that this would be the range. Motion Transcript, at 88-89. Scherschligt also told Lewis that if he cooperated with the Government, the sentence could be reduced below that range.
On May 5, 2008, Scherschligt told Lewis that the Government offered a plea agreement that required Lewis to waive his appeal rights. Lewis told Scherschligt that he did not want to waive his appeal rights. Scherschligt was also unhappy with the proposed agreement. Motion Transcript, at 12, 31-32. Scherschligt wanted to negotiate an open plea in which the Government would still allow Lewis to cooperate. Scherschligt believed this was the best option because Lewis could reap the benefit of cooperating, but retain his appeal rights. Motion Transcript, at 61-62. Lewis did not sign the agreement. According to Scherschligt, Lewis then directed Scherschligt to set a hearing in which Lewis could enter a guilty plea. Motion Transcript, at 66. Lewis denies that he told Scherschligt to set such a hearing. According to Lewis, Scherschligt was going back to the Government to try to negotiate a different plea agreement. Motion Transcript, at 13.
Scherschligt filed a motion for a change of plea hearing. Lewis appeared at the hearing before United States Magistrate Judge Byron G. Cudmore on May 13, 2008. Lewis claims that before the hearing began, he asked Scherschligt what the sentence would be. Lewis claims that Scherschligt told him that the sentence would be 150 months, but also that the sentence could be reduced by any downward departure for Lewis' cooperation. Lewis claims that the prosecutor, Assistant United States Attorney Gregory K. Harris, was standing next to Scherschligt at the time of this conversation. Lewis believed that he had an agreement with the Government regarding the sentence. Lewis stated:
I assumed when I pled guilty, and Mr. Scherschligt and I sat at the table, he wrote down on a yellow legal pad 150 months. And Mr. Harris was standing right there when he said it. And he said this is where we downward depart from, go ahead and plead guilty. So that's what I was assuming what the deal was. But that's just not how it worked out.
Motion Transcript, at 47-48. Scherschligt denies that he promised Lewis that Lewis would receive a particular sentence or implied that the Government had agreed to any particular sentence. Answer, Exhibit 10, Affidavit of Robert J. Scherschligt, ¶¶ 4-5.
Lewis then entered an open plea to the charge. During the hearing Judge Cudmore asked Lewis several questions to confirm that he was making a knowing and voluntary plea. Judge Cudmore's colloquy with Lewis included the following:
The Court: Mr. Lewis, have you had enough time to discuss your case with your attorney?
The Court: Are you satisfied with your lawyer's efforts on your behalf?
Mr. Lewis: Yes, sir. . . . .
The Court: Mr. Lewis, do you understand the maximum penalty?
The Court: If you receive the maximum amount of jail time, how many years is it?
Mr. Lewis: Twenty. . . . .
The Court: Very well. Do you have any questions at all,
Mr. Lewis, about what the maximum possible penalty ...