The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Julius Statham ("Statham"), incarcerated in federal prison in Memphis, Tennessee, filed a petition under 28 U.S.C. § 2255 to vacate, or, in the alternative, set aside or correct his sentence for conspiring to illegally transport guns from Mississippi to Chicago and sell them to convicted felons. Statham raises three grounds in his petition: (1) the Court misapplied the sentencing guidelines, (2) he did not plea guilty knowingly, voluntarily and intelligently, and (3) he received ineffective assistance of counsel prior to and during his sentencing. For the reasons below, the Court denies his petition.
I. Relevant Procedural History
On March 5, 2008, Statham pled guilty to participating in a conspiracy to (1) transport guns purchased in Mississippi to others who Statham knew were not Mississippi residents, and (2) sell those guns to convicted felons in Chicago. Three months later, the Court sentenced Statham, using the 2004 United States Sentencing Guidelines manual ("2004 Manual"), not the 2007 version then in effect. The Court explained that it used the 2004 Manual because another district court sentenced related defendants and Statham's co-conspirators using the more defendant-friendly 2004 Manual because "all of these individuals were arrested ... as part of the same investigation." (Sentencing Tr. 105.) Specifically, over the Government's objection, the Court was concerned that using the later manual would create "a disparity between the sentences" and "opted to discretionarily apply what is an easier guideline manual." (Id. at104-05.)
Over Statham's objection, the Court counted three prior convictions separately for purposes of calculating his criminal history score, finding that though he happened to be sentenced on the same day for all three, they were unrelated. (Id. at 123-25.) The Court determined that Statham belonged in criminal history category VI, and the resulting guidelines range was 63-78 months. (Id. at 130.) Noting that the statutory maximum sentence for Statham's crimes was 60 months, the Court imposed a 60 month sentence, running consecutively with an undischarged drug-trafficking case. (Id. at 152.)
Statham appealed on multiple grounds, challenging (1) the Court's finding that his offense involved more than 24 guns and some of the guns had their serial numbers obliterated, (2) the Court's separate treatment of his three previous convictions, and (3) the length of his sentence, asserting it should not have been longer than his co-conspirators or run consecutively to the sentence in his drug trafficking case. The Seventh Circuit affirmed on all points. See United States v. Statham, 581 F.3d 548 (7th Cir. 2009).
Section 2255 allows a person convicted of a federal crime to move the district court that imposed his sentence to vacate, set aside, or correct the sentence. See 28 U.S.C. § 2255. Such relief is only available in cases where there have been jurisdictional or constitutional errors, or where there has been a "complete miscarriage of justice." Harris v. United States, 366 F. 3d 593, 594 (7th Cir. 2004). If "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," then no further action is warranted. 28 U.S.C. § 2255(b). However, if the Court determines that the sentence was entered without jurisdiction, or was "not authorized by law or otherwise open to collateral attack," or was imposed in a manner that violated the petitioner's constitutional rights, then the Court should "vacate and set the judgment aside [as well as] discharge the prisoner or resentence him or grant a new trial to correct the sentence as may appear appropriate." Id.
A. Misapplication of the Sentencing Guidelines.
Statham asserts two problems with how the Court applied the sentencing guidelines. First, according to Statham, the Court should have considered three of his prior convictions (for which he was sentenced on the same day) as one conviction for purposes of calculating his criminal history score. (Memo. at 4-9.) He asserts that had the Court used the 2004 Manual instead of the 2007 Manual, he would have had a lower criminal history score. (Id.) Second, citing 18 U.S.C. § 3282, he argues that the Court should have sentenced him only on his conduct in the five years before the indictment. (Memo. 9-11.)
There are three fatal problems with Statham's argument regarding the Court's treatment of Statham's three prior convictions. First, the Seventh Circuit rejected the same argument on direct appeal.*fn1 The Court will not revisit it in now. See Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995) (holding a "Section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal . . .the court may still exercise its discretion not to reconsider issues already decided at trial, on direct appeal, or in prior § 2255 proceedings."). Second, because Statham's challenge of the Court's application of the sentencing guidelines is not a constitutional claim, it cannot be addressed in a § 2255 petition. See Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (noting a § 2255 petition is "rarely if ever the proper vehicle by which to challenge the application of a Sentencing Guideline provision").
Third, Statham's factual assumption is mistaken - the Court used the 2004 Manual, not the 2007 Manual. Setting that aside, under either manual, the treatment of the convictions at issue would have been the same. The 2004 Manual stated "prior sentences imposed in unrelated cases are to be counted separately." U.S.S.G. § 4 A 1.2(a)(2). Application Note 3 to that section of the 2004 Manual is more specific, stating, "[p]rior sentences are not considered related if they were for offenses that were separated by an intervening arrest." U.S.S.G. § 4 A 1.2(a)(2), Application Note 3; see also United States v. Best, 250 F.3d 1084, 1094 (7th Cir. 2001) (applying Note 3). The 2007 Manual reflects Amendment 709, which altered § 4 A 1.2(a)(2) to read, in part, "[p]rior sentences are always counted separately if the sentences were imposed for offenses that were separated by an intervening arrest." U.S.S.G. § 4 A 1.2(a)(2) (2007). In effect, Amendment 709 adopted the reasoning of Best. See Statham, 581 F.3d at 555 (holding "[w]hile the Sentencing Commission revised Application Note 3 in Amendment 709, the logic of Best remains compelling.") As the Court noted in detail at the sentencing hearing, the three crimes for which Statham was sentenced on August 6, 1996 were separated by intervening arrests and unrelated: one was for a burglary, the second was for was a theft and unlawful possession of a firearm by a felon, and the third was for drug possession. Consequently, under either sentencing manual-2004 together with Best or 2007 alone-the Court would have treated Statham's convictions the same way and Statham would have qualified for the same criminal history category.
When sentencing Statham, the Court could consider relevant conduct that occurred before March 1, 2002, five years before he was indicted for conspiracy. Though an offense is "committed" for § 3282 purposes when all elements of the offense have been met, continuing offenses, like conspiracies, are excepted. See United States v. Yashar, 166 F.3d 873, 875 (7th Cir. 1999) (noting a conspiracy is a "classic example of a continuing offense."). It is settled that "[t]he government is not required to prove any overt acts with regard to a particular defendant withing the limitations period; instead, the government is required to prove that the conspiracy existed into the limitations period and that the defendants did not withdraw before that period." United States v. Curry, 977 F.2d 1042, 1058 (7th Cir. 1992); Grunewald v. United States, 353 U.S. 391, 396-97 (1957) (noting "the crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement"). At the sentencing hearing, Statham's co-conspirator, Roy Christopher Blunt, testified that he had participated in a conspiracy to transport ...