The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Quintas Royal ("Mr. Royal") moves to vacate his sentence and conviction pursuant to 28 U.S.C. § 2255. Mr. Royal claims that the government violated his Sixth Amendment right to counsel by housing him in the Kankakee County Jail and that his trial counsel was ineffective. Mr. Royal requests an evidentiary hearing on his claims. For the reasons stated herein, the court denies Mr. Royal's request for an evidentiary hearing and denies his motion for a writ of habeas corpus.
The factual background surrounding the underlying convictions Mr. Royal attacks is set forth in United States v. Royal, 244 Fed. Appx. 50 (7th Cir. 2007).*fn1
In 2004, the Drug Enforcement Administration ("DEA") used a confidential informant to arrange for two sales of crack cocaine from Mr. Royal. The informant, Frederick Watkins, told Mr. Royal that his "man" wanted to buy "a couple ounces."
Watkins and Mr. Royal negotiated a price for the drugs and Watkins made clear that he "want[ed] it rocked up."
A week later Watkins paid Mr. Royal the agreed upon price for two ounces of cocaine, which Mr. Royal had said that he "cooked . . . up" the night before. A few days later, Watkins, this time accompanied by an undercover Chicago police officer, made a second purchase from Mr. Royal. The government charged Mr. Royal with two counts of knowingly and intentionally distributing controlled substances, namely, mixtures containing crack cocaine, in violation of 21 U.S.C. § 841(a)(1).
During Mr. Royal's trial, his trial counsel challenged whether Mr. Royal had distributed crack cocaine or some other controlled substance. Robert Krefft, a DEA senior forensic chemist, testified about the chemical properties of the drugs sold by Mr. Royal. According to Krefft, the two tests indicated that the drugs contained cocaine base. Krefft also testified about the total weight of the drugs sold by Mr. Royal.
In addition to Krefft's testimony, the government played recordings of conversations between Watkins and Mr. Royal. The government then called an expert witness to explain the terms used in those conversations. Sergeant George Korinthos of the Chicago Police Department's Narcotics Section testified he had never heard the term "rock" used to describe drugs other than crack cocaine. In addition, another expert testified that the price agreed upon by Mr. Royal and Watkins was within the range of prices that was commonly charged for crack cocaine. Finally, multiple witnesses, including Watkins, the undercover police officer who accompanied Watkins, Chicago police officer Laurence Coleman, and narcotics expert Robert Coleman, all testified that the drugs appeared to be crack cocaine.
Mr. Royal offered no evidence in his defense. Rather, Mr. Royal cross-examined the government's witnesses about the differences between powder cocaine, crack cocaine, and other forms of cocaine base. During closing, trial counsel argued that the government had failed to prove that the drugs Mr. Royal sold to Watkins were crack cocaine.
During its deliberations, the jury inquired, among other things, whether it was "important to determine that it is a controlled substance or that it is crack cocaine? (as said in the indictment versus judge instructions)." The court instructed the jury that the law it must follow is set forth in the instructions and not the indictment. The jury found Mr. Royal guilty on both counts. The jury also returned the special verdict form finding that the government had proven beyond a reasonable doubt that Mr. Royal had delivered more than 50 grams of crack cocaine for both counts. The jury's finding on the special verdict form triggered a statutory mandatory minimum sentence of 240 months. Subsequently, the court sentenced Mr. Royal to two sentences of 240 months to run concurrently.
Mr. Royal appealed his conviction and sentence. He argued that the court erred in relying on the jury's special findings because the indictment, jury instructions, special verdict form, and the court's response to the jurors' inquiry confused the jury. The appellate court rejected Mr. Royal's argument, noting that the jury instructions given to the jury were correct and that Mr. Royal's argument that the special verdict form hopelessly confused the jury was speculative. Mr. Royal also argued that insufficient evidence supported his conviction. The appellate court rejected that argument as well, holding that it bordered on frivolous. Finally, Mr. Royal argued that the meaning of "cocaine base" in 21 U.S.C. § 841(b) is unconstitutionally vague. The appellate court rejected Mr. Royal's final argument, holding that the methods used to identify crack cocaine were adequate in this case and the fact that other identification techniques might be insufficient was not material.
The appellate court denied Mr. Royal's petition for rehearing en banc on October 17, 2007. Mr. Royal elected not to petition the Supreme Court for a writ of certiorari. Royal filed this motion for relief under 28 U.S.C. § 2255 on September 29, 2008, less than a year after the expiration of time to file a petition for a writ of certiorari. 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. Royal 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 ...