The opinion of the court was delivered by: Murphy, District Judge:
Petitioner, James T. Ellis, is serving a 288 month sentence for his part in a fourteen person conspiracy to distribute and possess with intent to distribute cocaine, cocaine base, and marijuana. He brings this action pursuant to 28 U.S.C. § 2255 challenging his sentence. Mr. Ellis claims his lawyer was ineffective because he failed to: advise him to accept a plea agreement; object to a two-level enhancement for possession of a gun at sentencing; object to the calculation of his relevant conduct at sentencing; object to certain witness testimony; and object to a sentence enhancement due to a prior drug conviction. For the following reasons the motion is denied.
Mr. Ellis retained Paul M. Storment III as his lawyer after he was indicted November 18, 2004. Mr. Storment moved to withdraw as counsel on June 14, 2005 because of a breakdown in the attorney-client relationship. The Court granted Mr. Storment's motion on June 22, 2005 and appointed Ms. Carter Collins Law to represent Mr. Ellis. Later attorney Paul E. Sims was appointed and substituted for Ms. Law.
During the trial, Mr. Ellis's co-defendant Elvin Pawnell testified that Mr. Ellis possessed a handgun during the conspiracy. Another co-defendant, Charles Howliet, testified to relevant drug amounts. Mr. Ellis was found guilty by the jury of conspiracy to distribute five kilograms or more of a mixture or substance containing cocaine and cocaine base, and 100 kilograms or more of a mixture or substance containing marijuana. Before sentencing, Mr. Sims filed objections to the two-level gun enhancement and relevant conduct calculations contained within the presentence report. Mr. Sims argued, inter alia, that various drug amounts and gun possession included in the report were not proved by the evidence at trial beyond a reasonable doubt. These objections were denied. There was a 21 U.S.C. § 851 enhancement regarding Mr. Ellis's previous drug conviction, and the presentence report specified a twenty-year statutory minimum sentence of incarceration. Based on a total offense level of thirty-eight and criminal history category of IV, the guideline range for imprisonment was 324 to 405 months. The Court adopted the presentence report and imposed a below guidelines sentence of 288 months imprisonment.
On direct appeal, Mr. Ellis argued that the District Court improperly increased his offense level based on his possession of a firearm during the commission of the offense. The Seventh Circuit rejected that argument: "[W]e find no plain error in the district court's determination that [co-defendant] Pawnell's proffer was reliable and that it alone was sufficient to establish by a preponderance of the evidence that Ellis possessed a firearm in furtherance of the conspiracy." United States v. Farmer, et al., 543 F.3d 363, 371-72 (7th Cir. 2008). Petitioner filed this § 2255 motion December 14, 2009.
A hearing is not always required on § 2255 motions. "[A] district court must grant an evidentiary hearing when the petitioner alleges facts that, if proven, would entitle him to relief." Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006) (emphasis in original) (internal quotations omitted). However, if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," then a hearing is not required. Id., quoting 28 U.S.C. § 2255; see also Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001). For an evidentiary hearing to be granted, the Seventh Circuit requires that a motion made pursuant to § 2255 "include an affidavit setting forth the specific basis for relief." Kafo, 467 F.3d at 1067. The affidavit is a threshold requirement; "its absence precludes the necessity of a hearing." Id. The specific allegations in the motion and accompanying affidavit must go beyond merely unsupported assertions; "[m]ere unsupported allegations cannot sustain a petitioner's request for a hearing." Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996).
Mr. Ellis did not specifically request an evidentiary hearing until submitting his Response to the Government's Motion to Dismiss. He never submitted the requisite affidavit to support the hearing request. Furthermore, after careful review of the motion, files and records, the Court concludes that any factual matters raised by the motion may be resolved on the record and an evidentiary hearing is not required in this case.
In general, the Court must grant a request to vacate, set aside, or correct a federal prison sentence when "the sentence was imposed in violation of the Constitution or laws of the United States[.]" 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt, 83 F.3d at 816.
[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process. Consequently, Rule 4 of the Rules Governing § 2255 Proceedings for the United States District Courts provides that '[i]f it plainly appears from the motion, any attached exhibits, and the record of ...