The opinion of the court was delivered by: James F. Holderman, Chief Judge:
MEMORANDUM OPINION AND ORDER
On October 13, 2009, Movant Abraham Estremera filed a "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody." (Dkt. No. 1.) On February 1, 2010, the court requested supplemental briefing on the question of whether Estremera's motion violated the one-year statute of limitations under 28 U.S.C. § 2255(f)(1). (Dkt. No. 10.) On June 30, 2010, the court determined that resolution of the limitations question would require an evidentiary hearing, and requested briefing on the merits on four of the six allegations raised in Estremera's motion. (Dkt. No. 18.) The court also held that Estremera's other two allegations were too vague to merit a response. (Id.) On November 24, 2010, Estremera filed a "Pro-Se Supplemental Motion Pursuant to F.R.C.P. Rule 15(c)," seeking to add additional allegations. (Dkt. No. 23.) After considering the briefing on the merits, and the supplemental motion, the court concludes, for the reasons stated below, that Estremera's § 2255 motion and his supplemental motion should be denied.
On November 20, 2002, the government indicted Estremera on one count of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a) & 846 (Count I), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Count XI).
Prior to trial, Estremera engaged in plea negotations with the government. During those negotiations, Estremera's attorney advised him that "the only way [Estremera] could plead guilty was if [he] agreed to cooperate with the government by providing information and testimony against [his] co-defendants and others." (Id. ¶ 3.) Subsequently, the government proposed two draft plea agreements, dated April 18 and April 30, 2003. (Dkt. No. 22, Exs. C, D.) Estremera states that his attorney did not go over the April 18 agreement with him, but instead told him that "if I wanted to accept it I would have to sign the agreement and also agree to cooperate with the government against others." (Id. ¶ 5.) Estremera told his attorney he could not sign if the agreement required him to cooperate with the government. (Id. ¶ 6.) When Estremera's attorney later presented the April 30 agreement to Estremera, the attorney again stated that, under the agreement, Estremera would "be required to cooperate with the government against others." (Id. ¶ 7.) Again, Estremera declined to accept the plea agreement because of the cooperation requirement. (Id. ¶ 8.)
On June 17, 2003, a jury convicted Estremera on both counts. On November 29, 2005, Estremera was sentenced to life imprisonment on Count I, and 120 months on Count XI, to run concurrently. (Dkt. No. 19 ("Gov't Resp."), at 2.) At sentencing, the court determined that Estremera was responsible for 150 kilograms of cocaine, and that his total offense level was 40 (including a base offense level of 38 and a two-level enhancement for possession of a gun). (Id.) With Estremera's criminal history category of VI, he was subject to a guidelines range of 360 months to life in prison. (Id.)
The Seventh Circuit affirmed Estremera's conviction and sentence. United States v. Bustamante, 493 F.3d 879, 883 (7th Cir. 2007). Estremera moved to extend the time to file a petition for certiorari to January 24, 2008, and his motion was granted. Abraham Estremera v. United States, No. 07 A 407 (U.S. Nov. 14, 2007). He did not, however, file a petition. Id.
Under § 2255, "[a] prisoner in custody under sentence of a [federal] court . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). Generally, claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review under § 2255 in the absence of cause and prejudice. Massaro v. United States, 538 U.S. 500, 504 (2003). A defendant may, however, raise a claim for ineffective assistance of counsel for the first time on collateral review. Id. at 509.
"The court should grant an evidentiary hearing on a § 2255 motion when the petitioner alleges facts that, if proven, would entitle him to relief." Koons v. United States, 639 F.3d 348, 354 (7th Cir. 2011); see also 28 U.S.C. § 2255(b). The court may, however, "deny an evidentiary hearing where the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief." Koons, 639 F.3d at 354.
Estremera's motion contends that his attorney was constitutionally ineffective for: (1) refusing to raise issues that Estremera felt "would aid in [his] defense"; (2) misrepresenting to Estremera the terms of a proposed plea agreement; (3) allowing Estremera's previous "marijuana case" to increase his criminal history category; (4) allowing an enhancement of "two points for firearm possession on the conspiracy count" in addition to "a 120 month sentence for possession of a firearm by a felon"; (5) refusing to raise Estremera's objections to his Presentence Investigation Report; and (6) allowing Estremera "to be enhanced by a preponderance of the evidence" in violation of United States v. Booker, 624 F.3d 405 (2010). (See Dkt. No. 4.) Allegations 1 and 5 have since been stricken on account of vagueness. (Dkt. No. 18.)
For the reasons stated below, the court finds that, even assuming the facts he has alleged are true, Estremera is not entitled to relief under § 2255, and his ...