The opinion of the court was delivered by: James H. Jarvis United States District Judge
This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the § 2255 motion will be DENIED and this action will be DISMISSED. All other pending motions will be DENIED as MOOT.
This court must vacate and set aside petitioner's conviction upon a finding that "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255. To prevail under § 2255, petitioner "must show a 'fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 368 U.S. 424, 428 (1968)).
Under Rule 8 of the Rules Governing Section 2255 Proceedings In The United States District Courts, the court is to determine after a review of the answer and the records of the case whether an evidentiary hearing is required. If the motion to vacate, the answer and the records of the case show conclusively that petitioner is not entitled to relief under § 2255, there is no need for an evidentiary hearing. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).
Petitioner and his co-defendant, James King, were convicted by a jury of conspiracy to distribute and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846; petitioner was sentenced to a term of imprisonment of 240 months, which included an enhancement based upon a prior felony drug conviction. Petitioner's conviction and sentence were affirmed on direct appeal. United States v. King, 272 F.3d 366 (6th Cir. 2001), cert. denied, 535 U.S. 1119 (2002).
On direct appeal, petitioner argued that the evidence was not sufficient to support a conviction on the conspiracy charge. The Sixth Circuit disagreed: "There was sufficient evidence to show that Ramirez-Mendoza knowingly participated in the charged conspiracy." Id. at 372.
Petitioner also claimed on direct appeal that the drug quantity upon which his sentence was based and the prior conviction used to enhance his sentence should have been alleged in the indictment and proven to the jury, based upon Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 6 (2000). Because petitioner did not raise this issue at trial or at sentencing (Apprendi was decided after petitioner was sentenced), the Sixth Circuit reviewed his sentence for plain error. The court concluded that an Apprendi error did occur in petitioner's sentencing, but that petitioner's substantial rights were not affected. United States v. King, 272 F.3d at 378-80.
In support of his § 2255 motion to vacate sentence, petitioner alleges several instances of ineffective assistance of counsel and a challenge to the sufficiency of the evidence to support a conspiracy conviction. In two supplements to the § 2255 motion, petitioner also claims he is entitled to relief in light of the U.S. Supreme Court decisions in Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005), respectively.
A. Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984) the United States Supreme Court established a two-part standard for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so ...