MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Ahamad R. Atkins' motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1).
On September 24, 2014, the petitioner pled guilty without a plea agreement to one count of conspiracy to distribute crack cocaine and heroin from 2012 to May 2014 in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C) and 846. At the sentencing on May 18, 2015, the Court heard testimony from a number of witnesses regarding Atkins' relevant conduct and possession of a weapon. Considering the testimony, the Court found that Atkins' relevant conduct, consisting of crack cocaine, powder cocaine and heroin, equated to 4,135.8 of marihuana equivalent, which established a base offense level of 32. See U.S.S.G. § 2D1.1(c)(4).1 The Court raised the offense level by 2 points under U.S.S.G. § 2D1.1(b)(1) because it found Atkins had possessed a firearm in connection with his offense of conviction. It further declined to award a 3-point offense level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b) because it found Atkins had frivolously contested relevant conduct. The total offense level of 34,combined with Atkins' criminal history category of III, yielded a guideline sentencing range of 188 to 235 months. The Court sentenced Atkins to serve 216 months in prison, and written judgment was entered May 28, 2015.
The petitioner appealed his conviction to the United States Court of Appeals for the Seventh Circuit, which on March 18, 2016, dismissed the appeal as frivolous under the authority of Anders v. California, 386 U.S. 738 (1967). See United States v. Atkins, 640 F. App'x 549 (7th Cir. 2016). Atkins did not file a petition for a writ of certiorari to the United States Supreme Court. He filed this timely § 2255 motion on February 10, 2017.2
In his lengthy § 2255 motion, the petitioner raises the following claims:3
1. Prosecutorial misconduct in violation of the Fifth Amendment Due Process Clause for the following conduct:
a. charging Atkins with federal drug charges involving crack cocaine and making other prosecutorial decisions because of his race (Atkins is black);
b. housing Atkins before trial in a jail that had no law library;
c. tricking Atkins into not raising a racial profiling claim;
d. requesting that the Court deny Atkins an offense level reduction for acceptance of responsibility;
e. failing to give notice of evidence it planned to introduce at the sentencing hearing under Federal Rule of Evidence 404(b);
f. calling Adam Calvert as a witness at the sentencing hearing without disclosing him as a witness ahead of time, in violation of Federal Rules of Criminal Procedure 32(i)(2) and 26.2;
g. charging Atkins for a conspiracy that preceded the 4-month investigation of this case, introducing evidence of drug dealing from long before the charged conspiracy time frame, and presenting false or unreliable testimony to support relevant conduct;
h. knowingly presenting false testimony of government agents Chris Kelly and BernieGard to the grand jury and to the Court at sentencing;
i. failing to prove beyond a reasonable doubt that Atkins possessed a firearm in the course of the conspiracy and instead proffering clearly improbable and unreliable testimony; and
j. prosecuting Atkins with a deficient indictment that failed to allege detailed facts and circumstances of the charged conspiracy, any overt act done in furtherance of the conspiracy, or the time frame of the conspiracy;
2. Ineffective assistance of counsel in violation of the Sixth Amendment in the following ways:
a. Assistant Federal Public Defender ("AFPD") Judith Kuenneke, Atkins' counsel for his arraignment, misled Atkins in her initial meeting with him into believing this was a case based on controlled drug buys and not "racial profiling," causing him to waive that defense;
b. Eugene Howard, Atkins' counsel leading to and during his guilty plea, withheld discovery from Atkins before his guilty plea and coerced Atkins into entering a guilty plea without testing the Government's case;
c. Rodney Holmes, Atkins' counsel leading to and during his sentencing,
i. failed to review the prior case record when he began representing Atkins to discover prosecutorial misconduct and Kuenneke's ineffective assistance regarding waiver of a racial profiling defense and then failed to raise such a defense;
ii. failed to file a motion to withdraw Atkins' guilty plea;
iii. misled him into thinking he would receive a substantially lower sentence than he did;
iv. failed to object to prosecutorial misconduct relating to, and to move to dismiss, the deficient indictment;
v. failed to sufficiently consult with Atkins about objections to the Presentence Investigation Report's ("PSR") relevant conduct finding;
vi. failed to object to prosecutorial misconduct for failing to request an offense level reduction for acceptance of responsibility;
vii. failed to object to the lack of notice under Federal Rule of Evidence 404(b) of certain witnesses;
viii. failed to object to the Government's failure to disclose Adam Calvert as a witness ahead of the sentencing hearing in violation of Federal Rules of Criminal Procedure 32(i)(2) and 26.2;
ix. failed to object to the Government's introduction of evidence of conduct outside the dates of the investigation and/or the charged conspiracy to establish relevant conduct;
x. failed to object to the Government's knowing presentation of the false testimony of Chris Kelly and Bernie Gard to the grand jury and to the Court at sentencing;
xi. stipulated that Atkins possessed a firearm and failed to object to the 2-point offense level increase for possession of a firearm; andxii. failed to act as counsel in good faith;
d. Elizabeth R. Pollock, Atkins' attorney on appeal, failed to raise on appeal the overinclusiveness of the Court's relevant conduct finding, the erroneous application of the 2-point offense level enhancement for possessing a firearm, the denial of a 3-point reduction for acceptance of responsibility, and the failure to allow Atkins to withdraw his guilty plea; and
3. The Court erred in including uncharged and unrelated conduct outside the time frame of the charged conspiracy in calculating relevant conduct drug amounts and did not make the finding necessary to support its conclusion.
The Court must grant a § 2255 motion when a petitioner's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[r]elief under § 2255 is available 'only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.'" United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court has determined that it is plain from the motion and the record of the prior proceedings that the petitioner is not entitled to relief on the grounds set forth above as Ground 1 in its entirety, Grounds 2a, 2c(i), 2c(iv), 2c(vi)-(xii) and 2d, and Ground 3 in its entirety. Before explaining this conclusion, it would be helpful to provide more detail regarding the prior proceedings in Atkins' criminal case. The recitation of the facts is lengthy but essential to understanding the ground Atkins asserts as bases for § 2255 relief.
Atkins was indicted in May 2014 in the Southern District of Illinois on one count of conspiracy to distribute crack cocaine and heroin from 2012 to May 2014 in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C) and 846. Specifically, the indictment alleged:
THE GRAND .JURY CHARGES:
Count l
Conspiracy to Distribute Crack Cocaine and Heroin
From in or about 2012, through in or about May 2014, in Williamson County, within the Southern District of Illinois, and elsewhere,
AHAMAD R. ATKINS, a/k/a "Omar," a/k/a "O," and
ANTUAN D. PERKINS, a/k/a "Little Man,"
defendants herein, did knowingly and intentionally combine, conspire, and agree with each other and with other persons known and unknown to the Grand Jury, to knowingly and intentionally distribute a mixture and substance containing cocaine base, in the form commonly called "crack cocaine," a Schedule II, Controlled Substance, and a mixture and substance containing a detectable amount of heroin, a Schedule I Controlled Substance, in violation of Title 21, United States Code, Sections 84l(a)(l) and 841(b)(l)(C); all in violation of Title 21, United States Code, Section 846 and Title 18, United States Code, Section 2.
Indictment 1 (Case No. 14-cr-40061-JPG, Doc. 1). Atkins was arrested in the Chicago area in the Northern District of Illinois on June 9, 2014, made an initial appearance there, was detained, and was then removed to the Southern District of Illinois.
Once in this district, Atkins was arraigned before a magistrate judge on July 17, 2014. As is the custom in this district, an AFPD—Kuenneke, in this case—appeared on behalf of the defendant for the arraignment until counsel for the remainder of the case could be appointed. Typically, since the case is in its very early stages, the AFPD has limited information about the case other than the charges and appears in order to provide legal advice at the arraignment such...
