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U.S. v. WALKER

May 17, 2005.

UNITED STATES OF AMERICA
v.
MICHAEL WALKER, Defendant/Movant.



The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge

MEMORANDUM

BACKGROUND:

On April 14, 1999, Michael Walker was initially indicted on federal drug possession with intent to distribute charges. A superseding indictment was returned on May 12, 1999, charging Walker, and others, with additional drug charges. On June 9, 1999, Walker and two co-defendants were charged in a second superseding indictment.

  On December 3, 1999, Walker entered a guilty plea to the second superseding indictment. On July 6, 2000, the court granted Walker's motion to withdraw his first guilty plea, with which the government concurred, because of the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000). (Rec. Doc. No. 205.)

  On March 1, 2001, Walker again entered into a plea agreement. In keeping with the second plea agreement, Walker pled guilty to count two of the second superseding indictment. Count two of the second superseding indictment charged Walker with possession with intent to distribute in excess of five (5) grams of crack cocaine on or about March 15, 1999, in violation of Title 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B)(iii) and Title 18 U.S.C. § 2.

  On November 6, 2001, through his trial counsel Douglas B. Chester, Esquire, Walker moved the court to withdraw his guilty plea. (Rec. Doc. No. 328.) We denied that motion on December 10, 2001. (Rec. Doc. No. 343.) Next, Walker filed a pro se motion and supporting brief for reconsideration of our December 10, 2001 order (Rec. Doc. Nos. 352 & 357), which was denied on March 5, 2002. (Order, Rec. Doc. No. 365.)

  On September 17, 2002, a sentencing hearing was held before this court. Walker was sentenced, as a career offender, to 262 months imprisonment, 4 years supervised release, and $100 special assessment.

  On July 11, 2003, the United States Court of Appeals for the Third Circuit affirmed Walker's conviction and sentence. United States v. Walker, 69 Fed.Appx. 546 (3d Cir. 2003).

  On January 24, 2004, Walker filed pro se his first motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence. Then, on July 6, 2004, Walker filed a "supplemental motion under 28 U.S.C. § 2255" seeking to amend his motion to include a Blakely claim. On December 16, 2004, we directed the government to obtain and file an affidavit from Walker's trial counsel Douglas B. Chester, Esquire, that would address allegations made by Walker in his § 2255 motion. On February 7, 2005, we again directed government to obtain and file an affidavit from Douglas B. Chester, Esquire. We received that affidavit on February 22, 2005. On March 7, 2005, Walker filed a second supplemental motion seeking to amend his motion to include a Booker claim.

  For the following reasons we will deny several grounds raised in Walker's motion and schedule a hearing on the remaining issue, i.e., attorney Chester's advice to Walker regarding his ability to withdraw his guilty plea.

  DISCUSSION:

  Walker's January 20, 2004 motion under 28 U.S.C. § 2255 challenges his conviction and sentence on two grounds: ineffective assistance of counsel and "illegal confinement." In his July 6, 2004 motion, Walker raises a Blakely claim. In his March 7, 2005 motion, Walker raises a Booker claim. Due to Walker's pro se status we shall consider his supplemental motions as amendments to his original motion.

  I. Standard of Review A prisoner who is in custody pursuant to a sentence imposed by a federal court who believes "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255, ¶ 1; see United States v. Eakman, 378 F.3d 294, 297-98 (3d Cir. 2004).

  It is within the court's discretion whether to hold an evidentiary hearing on a § 2255 motion. See Gov't of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989); United States v. Abbott, 975 F.Supp. 703, 712 (E.D. Pa. 1997). "[T]he district court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." Abbott, 975 F.Supp. at 712 (quoting Gov't of the Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir. 1984)). The court need not hold a hearing if the "motion and the files and records conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255, ¶ 2; see Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts; United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). If the prisoner's claim presents a close question, "[t]he district court need only supplement the factual record when the merits of the section 2255 motion may turn on the truth of a non-frivolous ...


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