MICHAEL P. McCUSKEY, District Judge.
On August 23, 2012, Petitioner, Howard Baker, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1) and a Memorandum in Support (#2). On November 26, 2012, the Government filed its Response to Petitioner's Motion (#5). Subsequently, Petitioner filed two Motions for Judgment on the Pleadings (#6, #7). On April 12, 2013, the Government filed its Response to the Motion for Judgment on the Pleadings (#8). The Government stated that it appeared that Petitioner was just asking the court to rule on his Motion under § 2255 and, as such, the Government had no objection.
This court has carefully and thoroughly reviewed the arguments of the parties and the documents provided. This court has also reviewed the record in the underlying criminal case. Following this careful consideration, Petitioner's pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1) is DENIED. Because this court has now ruled on Petitioner's Motion (#1), Petitioner's Motions for Judgment on the Pleadings (#6, #7) are MOOT. In addition, because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED.
A. CRIMINAL CASE
On August 4, 2009, in Case No. 09-CR-20055, Petitioner was charged by indictment with one count of knowingly and intentionally possessing five grams or more of a mixture and substance containing cocaine base ("crack"), a Schedule II controlled substance, with the intent to distribute it. Attorney Neil Schurter was appointed as counsel for Petitioner. On September 17, 2009, the Government filed a Notice of Prior Convictions pursuant to 21 U.S.C. § 851(a)(1) and stated that Petitioner had two prior drug convictions in Champaign County. A jury was selected on October 29, 2009, and a jury trial commenced on November 2, 2009.
At trial, Champaign Police Officer Christopher Aikman testified that, on July 24, 2009, he drove to the 200 block of East Hill Street. Aikman was responding to a complaint to police that a person was battered in that block of Hill Street. The description of the assailant was a black male, wearing a black shirt and red pants. Aikman observed an individual, later identified as Petitioner, who was wearing a black shirt and red sweat pants. Petitioner was standing outside a residence in the 200 block of Hill Street. Aikman asked Petitioner to come talk to him. Petitioner complied, walked over to Aikman and voluntarily handed over his identification. Aikman then told Petitioner that he was going to pat him down and reached for Petitioner's arm, at which point Petitioner began running westbound on the sidewalk. Aikman testified that he was going to pat down Petitioner because "the initial complaint was that the subject was possibly armed with a pistol" and he did not want Petitioner "accessing a pistol." Aikman chased Petitioner and both of them collided onto a fence. Petitioner then ran back toward the residence and ran into the house. Aikman followed him into the house and landed on top of him. Petitioner was then apprehended and secured. Aikman testified that, after Petitioner was taken to a squad car, he returned to the area where they had collided and recovered crack cocaine near the fence.
Petitioner's occasional girlfriend, Trena Keomala, testified at trial under a grant of immunity. Keomala testified that she spoke to Petitioner the night he was arrested, prior to his arrest, and Petitioner informed her he was on the "Hill" because that was where he "made his money." Keomala testified that she asked Petitioner whether he had any crack cocaine for her to sell and Petitioner responded that he only had enough crack cocaine for himself. Keomala also testified that, since late 2006, she routinely received crack cocaine from Petitioner, which she would sell and Petitioner would receive the proceeds. She testified that she had received crack cocaine from Petitioner to sell just days before his arrest.
After the Government rested, Petitioner's counsel made a motion for "directed finding at the close of the government's evidence." This court construed the motion as a motion for judgment of acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure. This court then considered whether the Government had made a prima facie case as to all the elements of the offense and stated that "[t]he Court finds that a prima facie case has been made and denies the Rule 29(a) motion of the defendant at this time." Petitioner's counsel renewed his motion after the close of all the evidence. This court discussed the motion and the applicable standard and stated, "the Court will deny the Rule 29(a) motion under the Federal Rules of Criminal Procedure at the conclusion of all the evidence in this case." The jury found Petitioner guilty on November 3, 2009.
On February 16, 2010, a sentencing hearing was held. At sentencing, this court asked Petitioner directly if he was disputing that he had been convicted of unlawful delivery of a controlled substance, Champaign County Circuit Case 99-CF-1877, and Petitioner responded, "Yes, I was convicted." This court also discussed Petitioner's conviction of unlawful delivery of a controlled substance, Champaign County Circuit Court Case 00-CF-1428. This court stated to Petitioner, "you're not disputing you were convicted in that offense; is that right?" and Petitioner answered. "Right." This court then found Petitioner to be a career offender based upon his two prior convictions. This court sentenced Petitioner to a term of 360 months in the Federal Bureau of Prisons.
Petitioner appealed, and the Seventh Circuit affirmed his conviction and sentence on August 23, 2011. United States v. Baker, 655 F.3d 677 (7th Cir. 2011). Petitioner's first argument on appeal was that Keomala's testimony regarding Petitioner's prior drug distributions to her should not have been admitted under Rule 404(b) of the Federal Rules of Evidence. Because a Rule 404(b) objection had not been made to this testimony at trial, the Seventh Circuit considered the argument under a plain error standard. In considering this issue, the Seventh Circuit concluded that the admission of Keomala's testimony about Petitioner's prior bad acts did not constitute error under Rule 404(b). Baker, 655 F.3d at 681. The Seventh Circuit stated:
The relevance of Keomala's testimony is apparent. Following his arrest, Baker denied that he knowingly possessed the baggies of crack cocaine on the night he was arrested and also denied that he possessed the crack cocaine with intent to deliver it. Testimony regarding other instances in which Baker possessed crack cocaine with the intent to deliver it is relevant to Baker's intent and knowledge.
Baker, 655 F.3d at 681. The Seventh Circuit went on the say that, "[b]ecause Baker denies intent, this evidence is highly probative on that element." Baker, 655 F.3d at 682. The Seventh Circuit also rejected Petitioner's challenge to the reasonableness of his sentence and ...