The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by Ronnie Peppers. Petitioner initially filed a motion on October 4, 2005. This court issued an administrative order on October 6, 2005 advising Petitioner of the limitations of filing motions under 28 U.S.C. § 2255. As a result of that order, Petitioner elected to withdraw his October 4, 2005 motion and proceed with a motion filed November 3, 2005. The Government has responded to the motion and Petitioner has filed a reply. On February 2, 2006, a hearing was held on one issue. The matter is now ripe for disposition.
The history of this case is set forth in the Government's response to the motion and will not be repeated here. Pertinent to the issue before this court is that on May 9, 2003, Petitioner negotiated a plea agreement and plead guilty to an information charging him with possession of a .22 caliber revolver as an armed career criminal. This charge carried with it a 15 year mandatory minimum sentence. Previous to the plea, this court ruled adversely to Petitioner on a motion to suppress and a motion to dismiss Count VII, the firearms charge. At the time of the plea, Petitioner was advised that he could not appeal the decision on the suppression issue as the plea agreement was not a conditional plea.
Petitioner was subsequently sentenced to a term of imprisonment of 180 months, a $1,200 fine, a five year term of supervised release, and a special assessment of $100. Petitioner appealed raising as a sole issue whether the felon in possession statute (18 U.S.C. § 922(g)(1)) is unconstitutional under the Commerce Clause. The Third Circuit Court of Appeals affirmed the judgment of this court. A petition for certiorari was denied.
In the instant motion, Petitioner sets forth the following claims:
(a) The firearm seized from his vehicle that forms the basis of the offense of conviction was the product of an unconstitutional search and seizure.
(b) He is actually innocent because he had neither actual nor constructive possession of the firearm.
(c) His sentence is illegal because it exceeds the statutory maximum.
(d) He was selectively prosecuted because there are similarly situated, non-African-American individuals in the Middle District of Pennsylvania who have been charged with firearms offenses in state court but are not charged with federal firearms offenses.
(e) His guilty plea was involuntary and unknowing because he was "led to believe" that even though "another individual confessed to . . . placing a firearm in my vehicle without my consent or knowledge, that I am still legally responsible" and he "reluctantly pled guilty upon counsel's urging." (Pet.'s Mot. ¶ 6(b).)
(f) His indictment was brought in bad faith because Marshal Regan entered into an agreement with him providing he would cooperate in return for no prosecution.
(g) His indictment violated the terms of his agreement with Marshal Regan.
(h) His conviction violated double jeopardy because of his agreement with Marshal Regan "adjudicated" the prosecution of the firearms charge.
(i) Plea counsel was ineffective because he (1) failed to inform Petitioner that the superseding information did not properly set forth the predicate convictions for an offense under 18 U.S.C. § 924(e); (2) failed to challenge the applicability to Petitioner of 18 U.S.C. § 924(e); (3) advised Petitioner to plead guilty to a charge of which he was innocent; (4) advised Petitioner that he must state during the plea colloquy that he knew there was a firearm in his car; (5) failed to file a motion to dismiss the firearms charge on grounds of double jeopardy; (6) failed to file a motion to dismiss the firearms charge because ...