MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
On February 1, 2008, Keith McDaniel was charged along with twenty-three other individuals in a 39-count superseding indictment. Mr. McDaniel was charged in Count 1 with conspiracy to manufacture, to possess with intent to distribute, and to distribute cocaine and/or cocaine base, see United States v. McDaniel, 433 Fed.Appx. 701 (10th Cir. 2011), and in Count 34 with using a communication facility on November 26, 2007 to commit, cause and facilitate the conspiracy charged in Count I. He proceeded to trial on both counts. At trial, the court admitted into evidence multiple recorded telephone conversations between the conspirators which investigating officers had intercepted through wiretaps. See id. at 702. Seven of these conversations involved Mr. McDaniel. Id. The jury found Mr. McDaniel guilty of the conspiracy charged in Count 1 and not guilty on Count 34 and, thereafter, the court sentenced Mr. McDaniel to 360 months' imprisonment.
Mr. McDaniel filed an appeal with the Tenth Circuit in which he challenged the admissibility of the wiretap recordings that were attributed to him on the grounds that the government's witnesses failed to establish sufficient familiarity with Mr. McDaniel's voice to identify it on the recordings; and the wiretap applications were deficient and the wiretaps were not necessary to the investigation. The Circuit affirmed the court's rulings, concluding that the admission of the recordings was supported by sufficient evidence to satisfy Federal Rule of Evidence 901 and that the court properly refused to suppress the wiretap evidence.
This matter is now before the court on Mr. McDaniel's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (doc. 1551) and his motion for discovery (doc. 1577) relating to his motion to vacate. In his § 2255 motion, Mr. McDaniel raises eight separate claims wherein he contends that the performance by trial and appellate counsel was deficient in violation of his Sixth Amendment right to counsel. "To establish ineffective assistance of counsel, a defendant must show that counsel's representation fell below an objective standard of reasonableness' and that he was prejudiced by the deficient performance." United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). As will be explained, the court denies each of Mr. McDaniel's claims and denies Mr. McDaniel's request for an evidentiary hearing. The court also denies Mr. McDaniel's motion for discovery in which he seeks the grand jury testimony of Officer Eric Jones and to have the prosecutor admit or deny requests for admission. With respect to the request for the grand jury testimony of Officer Jones, the motion is denied because he has not shown the requisite "good cause" for the discovery. Specifically, Mr. McDaniel has not offered any specific allegations on what facts would be developed through the grand jury transcript that might entitle him to relief on any of his claims. With respect to the requests for admission, the motion is denied for failure to comply with Rule 6(b) of the Rules Governing Section 2255 Proceedings, which requires that any proposed requests for admission be included in the discovery request. Mr. McDaniel asserts in his motion that he has attached the requests for admission but, in fact, no requests are attached.
Failure to Move to Dismiss Indictment for Violation of Rule 7(c)(1)
For his first assertion of error, Mr. McDaniel claims that his Sixth Amendment rights were violated when his trial counsel failed to move to dismiss Count 1 of the indictment based on an asserted violation of Federal Rule of Criminal Procedure 7(c)(1). According to Mr. McDaniel, the conspiracy charge did not identify any of the seven phone calls used to convict Mr. McDaniel and did not state the times and dates of the calls; the acts facilitated by the calls; or which controlled substance was involved in each call. The claim is denied as Mr. McDaniel cannot establish a violation of Rule 7(c)(1) and, thus, cannot establish prejudice as a result of his Moreover, even assuming that the government has failed to address one or more claims asserted by Mr. McDaniel, the court is required to determine whether Mr. McDaniel's motion, on its own, alleges facts that, if true, warrant an evidentiary hearing. His motion does not allege such facts. counsel's failure to raise the issue. See United States v. Fortune, 41 Fed.Appx. 318, 319 (10th Cir. 2002) (counsel's failure to raise an issue cannot be deemed deficient where the issue lacks merit).
Federal Rule of Criminal Procedure 7(c)(1) requires that the indictment contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). The Tenth Circuit has held that an indictment must plead facts "sufficient to inform the defendant of the charges against him to enable him to prepare a defense and to safeguard him from double jeopardy." United States v. DeVaughn, 694 F.3d 1141, 1146, n.3 (10th Cir. 2012). In the context of a conspiracy case, the Circuit requires an indictment to aver the essential elements of conspiracy as well as the "essential elements upon which the underlying offense rests, " but does not require the indictment to allege "the underlying offense with the same degree of specificity that is required to charge the offense itself." United States v. Bedford, 536 F.3d 1148, 1155 n.6 (10th Cir. 2008).
The indictment in this case charges a conspiracy "beginning in or about January 2006 and continuing to on or about November 27, 2007... in the District of Kansas and elsewhere" in which Mr. McDaniel and other identified co-conspirators
knowingly and intentionally combined, conspired, confederated and agreed together and with each other, and with other persons known and unknown to the Grand Jury, to commit the following offenses against the United States: to manufacture, to possess with intent to distribute and to distribute 50 grams or more of cocaine base "crack, " a controlled substance and, to possess with intent to distribute and to distribute five kilograms or more of a mixture and substance containing a detectable amount of cocaine, a controlled substance, all in violation of Title 21, United States Code, Section 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii) and Title 18, United States Code, Section 2.
This was all in violation of Title 21 United States Code, Section 846.
Mr. McDaniel, then, is correct that the indictment does not mention the fact or substance of the phone calls used to convict Mr. McDaniel of the conspiracy. But the law does not require that an indictment detail the factual proof that will be relied upon to support the charges, particularly when the indictment sets forth an offense in the words of the statute itself, as long as those words set forth all the elements necessary to constitute the offense intended to be punished. United States v. Doe, 572, F.3d 1162, 1173-74 (10th Cir. 2009). Here, the indictment uses the words of the conspiracy statute itself and includes the date, place and nature of the conspiracy charged. Because the indictment provides Mr. McDaniel with adequate notice of the nature and cause of the accusations filed against him (and, indeed, he does not contend otherwise), the indictment is sufficient under Rule 7(c)(1) and he cannot establish ineffective assistance of counsel based on his counsel's failure to raise the issue. See Valdez v. McKune, 266 Fed.Appx. 735, 740 (10th Cir. 2008) (denying habeas relief where petitioner argued that information charging conspiracy was fatally defective because it did not allege an overt act; petitioner did not establish that the information failed to provide him with notice of accusations against him); United States v. Guillen-Zapata, 240 Fed.Appx. 797, 799 (10th Cir. 2007) (counsel not ineffective for failing to challenge conspiracy indictment based on indictment's failure to identify end date for conspiracy; indictment sufficient because it set forth elements of charged offense and put defendant on fair notice of the charge).
Failure to Move to Dismiss Indictment for Prosecutorial Misconduct
Mr. McDaniel contends that his trial counsel was ineffective because he did not move to dismiss Count 1 of the indictment based on prosecutorial misconduct. Specifically, Mr. McDaniel asserts that the government knowingly "sought an indictment in the State of Kansas" based on conduct-the November 26, 2007 phone call between Mr. McDaniel and Monterial Wesley-that occurred solely in the State of Missouri and purposely withheld this information from the grand jury. The claim is denied because Mr. McDaniel cannot establish the requisite prejudice from his counsel's failure to make this argument. His counsel made a related argument to this court in connection with Mr. McDaniel's motion for judgment of acquittal and for new trial. Therein, Mr. McDaniel's counsel argued that the court erred in not instructing the jury on venue for Count 1. As the court explained in rejecting that argument, venue in a conspiracy case is proper in any district where the conspiratorial agreement is formed or where an overt act in furtherance of the conspiracy is committed by any of the conspirators. United States v. Durham, 139 F.3d 1325, 1329 (10th Cir. 1998). The Tenth Circuit has made clear that for the purposes of venue, "the acts of any conspirator are imputed to the other conspirators." United States v. Miller, 111 F.3d 747, 753 n.8 (10th Cir. 1997).
Contrary to Mr. McDaniel's suggestion, then, the fact that he was acquitted of Count 34, which required an explicit finding of Kansas as the venue, and convicted of Count 1 does not raise a venue concern. Substantial evidence was presented by the government of various co-conspirators' overt acts in Kansas. No prosecutorial misconduct, then, occurred by virtue of the fact that the government indicted Mr. McDaniel for conspiracy in Kansas and his counsel was not ineffective for failing to raise an argument that clearly lacks merit. See United States v. ...