The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Petitioner Kareem Bates' motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Doc. 50.) For the reasons stated below, the motion will be denied in part and an evidentiary hearing will be held. A certificate of appealability will not be issued.
On August 3, 2004, the government filed an indictment against Petitioner Bates charging three (3) counts of violating 21 U.S.C. § 841(a)(1), one (1) count of violating 18 U.S.C. §924(c)(1)(A), and one (1) count seeking criminal forfeiture under 21 U.S.C. § 853. (Doc. 1.) On August 17, 2004, Petitioner pled not guilty to all counts of the indictment. (Doc. 5.) On December 7, 2004, the government entered into a plea agreement with Petitioner. (Doc. 17.) On February 15, 2005, Petitioner's counsel, Michael Kostelaba, was granted the right to withdraw from the case. (Doc. 25.) James Swetz was appointed as new counsel for Petitioner. (Doc. 26.)
On June 23, 2005, Petitioner withdrew his not guilty plea to Counts III (firearm charge, 18 U.S.C. § 924(c)(1)), IV (distribution and possession with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1)), and V (forfeiture, 21 U.S.C. § 853) of the Indictment, and entered a plea of guilty to those counts. (Docs. 36, 37.) On September 26, 2005, Petitioner was sentenced to a term of one hundred twenty-five (125) months. (Doc. 44.) Petitioner did not file an appeal.
On July 17, 2006, Petitioner filed the instant § 2255 motion. (Doc. 50.) Supporting (Doc. 51), opposing (Doc. 61), and reply (Doc. 67) briefs were filed. Petitioner then filed a Consolidated Motion to Amend and Supplement his § 2255 motion. (Doc. 68.) By order of November 6, 2006, the Court construed Petitioner's brief in support of his motion to Amend and Supplement as part of the motion and ordered that the government had fifteen (15) days to file a response. (Doc. 69.) No response has been filed. Motions to amend habeas corpus petitions are governed by the Federal Rules of Civil Procedure, Riley v. Taylor, 62 F.3d 86, 89-90 (3d Cir. 1995), which provide that leave to amend "shall be freely given when justice so requires." FED. R. CIV. P. 15. Petitioner's proposed supplement to his motion is based on appellate court interpretations of the manner in which United States v. Booker, 543 U.S. 220 (2005), changed district courts' discretion regarding the sentencing differential between cocaine base ("crack cocaine") and powder cocaine. Since the time that Bates filed his petition, the Sentencing Guidelines pertaining to crack cocaine have been lowered. The change in the Guidelines will be made retroactive beginning March 3, 2008, "at which time reductions in sentence pursuant to 18 U.S.C. § 3582(c)(2) based on the retroactive application of the crack cocaine amendment will be authorized." (Memorandum from The United States Sentencing Commission, to Judges, United States Courts of Appeals et al., 2 (Dec. 12, 2007)). In light of this change in law under which Bates may soon challenge his sentence in Count IV, I conclude that justice does not require that Bates be permitted to supplement his petition at this time with arguments based on older law. His motion to Amend and Supplement will therefore be denied.
Finally, along with his reply brief, Bates included a motion to expand the record in accordance with Rule 7 of the Rules Governing Section 2255 Proceedings and filed a declaration in which he swore that "I repeatedly and vehemently stressed to Mr. Swetz that I wanted to appeal the 924(c)(1) count. ... During and after sentencing I repeatedly insisted that Mr. Swetz file an appeal but he consistently expressed to me that I had no grounds to do so." (Decl. of Kareem Bates, Sept. 20, 2006, Doc. 67 ¶¶ 4-5.) Rule 7 allows the Court to expand the record to include Bates' declaration, but requires I first give the opposing party an opportunity to admit or deny the correctness of the additional materials. The Government has had that opportunity, as the motion to expand was served on the Assistant United States Attorney. I will therefore allow the expansion of the record.
Petitioner's § 2255 motion is fully briefed and ripe for disposition.
In order to prevail on a § 2255 motion to vacate, set aside, or correct a sentence, a petitioner must show "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003). Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts instructs that if "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Otherwise, the court must hold an evidentiary hearing on the motion. United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).
I. Petitioner's Arguments for Collateral Relief
Petitioner challenges his sentence for Count III on the following grounds. First, he argues that the Court committed plain error under Rule 11 of the Federal Rules of Criminal Procedure by not advising Petitioner "that he was pleading guilty to an amended offense that was not charged in the indictment," (Doc. 51, at 3). Second, he argues that his plea was induced by the ineffective assistance of counsel. Third, he argues that the Indictment impermissibly charged a "duplicitous" count, in that it set forth separate and distinct crimes in a single count, in violation of the Sixth Amendment to the United States Constitution. Fourth, he argues that his underlying conduct does not support a conviction on Count III of the Indictment for either use and carrying of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) or for possession of a firearm in furtherance of a drug trafficking crime, which Petitioner contends is a separate, distinct offense under 18 U.S.C. § 924(c)(1).
A defendant who has not challenged a guilty plea on direct review is procedurally defaulted from attacking it in a habeas petition unless he "can first demonstrate either  'cause [meaning that the failure to directly appeal was caused by the error petitioner now challenges] and actual prejudice' or  that he is 'actually innocent.'" United States v. Garth, 188 F.3d 99, 106 (1999) (citing Bousley v. United States, 523 U.S. 614 (1998)). Because even challenges that generally cannot be reviewed for the first time on a § 2255 motion may be reviewed "as part of a successful claim that counsel provided ineffective assistance," e.g., Weinberger v. United ...