The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
James Rand ("Mr. Rand") moves to vacate his sentence and conviction pursuant to 28 U.S.C. § 2255. Mr. Rand claims that his trial counsel was ineffective, that the government violated his Sixth Amendment right to a speedy trial, that the facts failed to charge an offense, and that insufficient evidence supports his conviction. Mr. Rand requests an evidentiary hearing on his claims. For the reasons stated herein, the court denies Mr. Rand's request for an evidentiary hearing and denies his motion for a writ of habeas corpus.
The factual background surrounding the underlying convictions Mr. Rand attacks is set forth in United States v. Rand, 482 F.3d 943 (7th Cir. 2007).
In 2001, federal authorities had arrested Joseph Kalady ("Kalady"), a friend of Mr. Rand, for conducting a scheme in which he counterfeited U.S. birth certificates to obtain passports for illegal aliens. In order to avoid the consequences of his acts, Kalady, who had been released on bond, hatched a plot to fake his own death and flee the jurisdiction. Kalady recruited Mr. Rand to take part in the deception and asked Mr. Rand to lure a homeless man to Kalady's home so that Kalady could kill him. Michael Kalady ("Michael"), Kalady's brother, would then report the dead body to the authorities and falsely assert that it was his brother. Michael would also ensure that the body was cremated so that no evidence of the deception remained.
A few days before Kalady was scheduled to be arraigned, Mr. Rand brought William White to Kalady's house. Kalady paid Mr. Rand for his services. Kalady murdered White the next day. Raul Rodriguez, another friend that Kalady involved his scheme, was present when Kalady murdered White. Michael later found White, who was wearing Kalady's clothes, dead in Kalady's recliner. Kalady's plan, however, unraveled quickly, largely because Kalady weighted over 400 pounds and White weighed less than half of that, causing authorities to become suspicious.
Mr. Rand was arrested. He admitted that Kalady told him to "get a homeless guy, kill him, and have that guy take Kalady's place." Rand, 482 F.3d at 945. Mr. Rand was charged with aiding and abetting Kalady in the murder of Mr. White in violation of 18 U.S.C. § 1512(a)(1)(C), a witness tampering statute, and conspiring to help Kalady fail to appear for arraignment in violation of 18 U.S.C. § 3146(a)(1). A jury convicted Mr. Rand of both counts. The court sentenced Mr. Rand to a life term on the first count and a concurrent five-year term on the second count.
During his direct appeal, Mr. Rand challenged only his conviction under § 1512(a). Mr. Rand challenged the applicability of § 1512(a) to the facts charged in the indictment. Mr. Rand first argued that he had not violated § 1512(a) because White was not a witness, victim or informant as required by the statute. The Seventh Circuit rejected that argument, noting that § 1512(a) does not require that a person kill a witness, victim, or informant, but instead "makes it a federal crime to kill . . . 'another person' . . . in order to prevent the communication of information by 'any person' to the court." Rand, 482 F.3d at 946. Mr. Rand also argued that § 1512(a) applied only to efforts to conceal prior crimes and not future crimes, such as Kalady's intent to flee. The Seventh Circuit rejected that argument as well. Rand, 482 F.3d at 948. Mr. Rand also challenged the portion of the jury instructions that set forth the elements of the crime, but the Seventh Circuit rejected that argument. Rand 482 F.3d at 949.
Mr. Rand petitioned for rehearing and for rehearing en banc, both of which the Seventh Circuit denied. United States v. Rand, 493 F.3d 776 (7th Cir. 2007). The Supreme Court denied Mr. Rand's petition for writ of certiorari on November 13, 2007. Rand v. United States, 552 U.S. 1023 (2007).
Mr. Rand filed this motion for relief under 28 U.S.C. § 2255 in November 6, 2008, less than a year after his certiorari petition was denied by the Supreme Court. The motion is therefore timely under 28 U.S.C. § 2255(f)(1). Latham v. United States, 527 F.3d 651, 652 (7th Cir. 2008).
Mr. Rand challenges his detention pursuant to 28 U.S.C. § 2255. Section 2255 is an extraordinary remedy because it asks the district court "to reopen the criminal process to a person who has already had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). The federal habeas corpus statute provides that:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.
28 U.S.C. § 2255. A district court may dismiss a § 2255 motion without holding an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). In order to allege facts sufficient to receive an evidentiary hearing, a movant must submit a sworn affidavit with specific facts supporting the movant's assertion that he is entitled to relief. Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 7th Cir. 2006). The affidavit must be detailed and specific. Vague, conclusory or palpably incredible assertions are insufficient. Id. A district court may consider ...