The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Presently before the court is defendant's motion (Doc. 74) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 Defendant claims that his sentence was illegal because he was denied to a two-point reduction in offense level for acceptance of responsibility and because calculation of his criminal history category improperly added one point for a prior offense. (Doc. 82 at 3.) He further claims that he should be released because he was tried pursuant to an invalid indictment and that his counsel was ineffective assistance for failure to raise these claims at his sentencing. The record conclusively rebuts defendant's claims, and the court will deny defendant's motion.
On August 5, 1996 defendant was sentenced in state court for three counts of possession with intent to distribute cocaine base and two counts of conspiracy. Federal deportation proceedings followed, and defendant was deported on October 25, 2001. He subsequently returned to the United States and was convicted of illegal re-entry in February 2005.*fn2 (Doc. 58.) Defendant appealed to the United States Court of Appeals for the Third Circuit, which affirmed the conviction and sentence. (Doc. 71.) He then commenced the instant § 2255 motion (Doc. 74), to which the United States filed a brief in opposition (Doc. 88). The motion has been fully briefed and is ripe for disposition.
In the instant case, defendant asks the court to "vacate, set aside, or correct [his] sentence" based on allegations that his guideline range was miscalculated under §§ 3E1.1 and 4A1.2 of the United States Sentencing Guidelines. He also seeks relief on the grounds that the indictment against him was invalid and that he received ineffective assistance of council.*fn3
A. Challenge under Guidelines § 3E1.1
Defendant claims that his offense level should have been reduced by two points for acceptance of responsibility under Sentencing Guidelines § 3E1.1. That section authorizes a two-point reduction in offense level if a defendant clearly accepts responsibility for the defendant's criminal activity. The commentary to § 3E1.1 elaborates:
This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct).
U.S. SENTENCING GUIDELINES MANUAL § 3E1.1, cmt. n.2 (2007).
Hence, defendant may qualify for the reduction when trial is necessary to assert a collateral challenge unrelated to factual guilt.
Defendant's avowed reason for going to trial was "to preserve the collateral issue of the validity of his prior deportation order." (Doc. 82 at 5). However, the government filed a motion in limine to exclude evidence at trial regarding the deportation order because defendant had the right to direct appeal within the context of his deportation proceedings. He neglected to pursue a direct appeal, which the United States asserted as a waiver of collateral challenges to the order. This court granted the motion in limine, and the Third Circuit upheld the court's ruling. (See Doc. 71-2 at ...