The opinion of the court was delivered by: Conti, District Judge
Pending before the court is a motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 ("petitioner's motion") (Doc. No. 78) filed by petitioner Warren Evans, Jr. ("petitioner"). Upon reviewing petitioner's motion and the government's brief in opposition (Doc. No. 80), the court will deny petitioner's motion for the reasons set forth herein.
On July 30, 2002, a grand jury returned a one-count indictment charging petitioner with possession with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, on or about July 18, 2002, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). (Doc. No. 6). On September 30, 2002, a grand jury returned a superseding indictment reasserting the previously filed charge and in addition charging petitioner with attempted possession with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, on or about February 18, 2002, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). (Doc. No. 19). On April 21, 2003, petitioner pled guilty to both counts. (Doc. No. 64). On August 8, 2003, petitioner was sentenced to imprisonment for a term of 100 months at each count to run concurrently followed by supervised release for a term of 60 months (5 years). (Doc. No. 71).
On or about April 15, 2005, the clerk of court received and filed petitioner's motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 (Doc. No. 78). In his motion, petitioner lists two grounds for his claim that he is being held in violation of the Constitution, laws or treaties of the United States and his prayer for relief that the court vacate, set aside, or correct his sentence. Specifically, petitioner alleges (1) ineffective assistance of counsel based upon counsel's failure to challenge the court's failure to submit drug quantity and type to the jury;*fn1 and (2) a violation of his Sixth Amendment right to a jury based upon the line of decisions including Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).*fn2
On August 31, 2005, the court issued a notice that the motion to vacate had been filed and that the government was directed to file its response and a brief in opposition on or before September 16, 2005. (Doc. No. 79). On September 16, 2005, the government filed its response in opposition. (Doc. No. 80).
A district court is required to hold an evidentiary hearing on a motion to vacate sentence filed pursuant to 28 U.S.C. § 2255 unless the motion and files and records of the case show conclusively that the movant is not entitled to relief. 28 U.S.C. § 2255 ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). For reasons set forth herein, and based upon the motion and files and records of the case, the court determines that petitioner's motion shall be denied as a matter of law. An evidentiary hearing, therefore, is not required.
Under 28 U.S.C. § 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside or correct the sentence upon the ground 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."*fn3 The Supreme Court read the statute as stating four grounds upon which relief can be granted:
(1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence "is otherwise subject to collateral attack."
CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 593 (3d ed. 2004) (quoting Hill v. United States, 368 U.S. 424, 426-27 (1962)). The statute provides as a remedy for a sentence imposed in violation of law that "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255.
Petitioner premises his motion on an ineffective assistance claim and a Sixth Amendment violation of his right to trial by jury. The court, however, does not need to reach the merits of petitioner's motion because petitioner's claims are not timely raised. Petitioner failed to file his motion within the statute of limitations period applicable to section 2255 motions.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that a one-year period of limitation applies to a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255. See Lloyd v. United States, 407 F.3d 608, 611 (3d Cir. 2005). Section 2255 states, in relevant part, that "a 1-year period of limitation shall apply to a motion under this section." 28 U.S.C. ...