The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
E-FILED Thursday, 09 December, 2010 02:12:28 PM
Clerk, U.S. District Court, ILCD
Petitioner, Marvin James Hamilton, is before the Court on a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 1), which he filed on March 22, 2010. Respondent filed United States' Response to Petitioner's Motion Under § 2255 (Doc. 4) on June 2, 2010. On July 6, 2010, Petitioner filed a Reply entitled "Petitioner's Motion for Traverse" (Doc. 5). Finally, on September 13, 2010, Petitioner filed a Motion to Amend his § 2255 Petition (Doc. 6).
Petitioner has requested an evidentiary hearing on his claims. (Doc. 1). He is entitled to an evidentiary hearing only if he has alleged facts that, if proven, would entitle him to relief. Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). Because the Court can determine from the motion, facts, and the record of the case that Petitioner is not entitled to relief, Petitioner's request for an evidentiary hearing is DENIED. See Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001). For the reasons stated below, Petitioner's Motion to Amend is DENIED and Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is DENIED.
On January 29, 2008, an indictment was returned against Petitioner, charging him with Conspiracy to Distribute Crack Cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (Count 1), and Possession with Intent to Distribute Crack Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count 2). (Doc. 4 at 1). A jury trial was held on October 27 and October 28, 2008. At the trial, a Mr. Simmons and a Mr. Pullman, both of whom had previously been arrested and pled guilty to similar conspiracy charges, testified against the Petitioner. (Tr. at 28-78; 136-165)*fn1 . Both men testified that Petitioner was with them earlier during the night that they were arrested, and that he had several times "cooked" powder cocaine into crack cocaine for Pullman. (Tr. at 38, 142). On October 28, 2008, a jury found Petitioner guilty on both counts. (Doc. 4 at 2). Petitioner was sentenced to the mandatory minimum 240 months imprisonment on each count, to run concurrently, ten years supervised release, and a $200 special assessment. (Doc. 4 at 2).
One day after judgment was entered, of February 10, 2009, Petitioner filed a Notice of Appeal. (Doc. 4 at 2). Petitioner was appointed a new attorney,*fn2 who filed an Anders brief addressing two issues: 1) whether this Court erred in denying Petitioner's objections to drug quantity and finding that Petitioner was responsible for at least 500 grams of crack cocaine; and 2) whether this Court erred in finding that Petitioner was a manager or supervisor in the conspiracy. (Doc. 4 at 2-3). On November 5, 2009, the Seventh Circuit Court of Appeals held that this Court's finding of at least 500 grams of cocaine was supported by ample evidence, and that although there was little evidence to support the leadership enhancement, Petitioner was nevertheless subject to the 20-year statutory minimum and thus any error in applying the leadership enhancement was harmless. United States v. Hamilton, 350 Fed. Appx. 80 (7th Cir. 2009).
On March 22, 2010, Petitioner filed the instant Motion to Vacate, Set Aside, or Correct Sentence. (Doc. 1). In his Motion, Petitioner raises two grounds for relief. First, Petitioner claims that his trial counsel provided ineffective assistance when he failed to request a "buyer-seller agreement" jury instruction. (Doc. 1 at 4). Second, Petitioner claims that his appellate counsel provided ineffective assistance by failing to submit, on direct appeal, newly discovered evidence that Simmons, who had served as a government witness in Petitioner's case, had since committed perjury in violation of his cooperation agreement. (Doc. 1 at 5). Petitioner claims that this new evidence entitled him to a new trial. (Doc. 1 at 5).
On September 13, 2010, Petitioner filed another motion, seeking to amend his § 2255 Petition due to the recent enactment of the Fair Sentencing Act of 2010 ("FSA"). (Doc. 6). Petitioner claims that the law should be applied retroactively, and accordingly this Court should hold an evidentiary hearing to determine if Petitioner is entitled to immediate release from custody based upon a sentence recalculated under the new law. (Doc. 6 at 17). The Court will first consider Petitioner's Motion to Amend, and then analyze his §2255 Motion as filed.
On August 3, 2010, the President signed the FSA into law. United States v. Bell, ---F.3d---, 2010 WL 4103700, at *10 (7th Cir. Oct. 20, 2010) The new law amended the Controlled Substances Act and Controlled Substances Import and Export Act by resetting the drug quantities required to trigger mandatory minimum sentences. Id. For example, the drug quantity that triggers a ten year mandatory minimum has been increased from 50 grams to 280 grams. United States v. Gibbs, No. 10-1509, 2010 WL 4723337, at *2 (7th Cir. Nov. 22, 2010) (comparing 21 U.S.C. § 841(b)(1)(A)(iii) (2008) with 21 U.S.C. § 841(b)(1)(A)(iii) (2010)).
In filing his Motion to Amend, Petitioner seeks to have this Court declare that the former statutory guidelines were unconstitutional and thus apply the new law to his sentence. In essence, Petitioner is seeking the retroactive application of the FSA. (Doc. 6 at 17). As such, Petitioner's claim would be barred by existing Seventh Circuit precedent, which holds that the FSA does not have retroactive application. Bell, 2010 WL 4103700, at *10; Gibbs, 2010 W: 4723337, at *2; see also United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010). Because the FSA does not apply retroactively, Petitioner's claim seeking retroactive application would be futile. Moreover, even if the FSA were held to apply retroactively, the statutory minimum of ten years would still apply to Petitioner because Petitioner was ...