The opinion of the court was delivered by: Ambrose, Chief Judge
OPINION AND ORDER OF COURT
In this criminal matter, on June 24, 2005, Defendant entered a plea of guilty to a single count of possession with intent to distribute in excess of fifty grams of crack cocaine. He received a sentence of 262 months imprisonment. Defendant filed an appeal with the Court of Appeals for the Third Circuit, which affirmed his sentence on May 3, 2007. No writ of certiorari was filed.
Defendant has now filed a Motion pursuant to 28 U.S.C. § 2255, arguing that counsel was ineffective for failing to file a writ of certiorari after Defendant asked him to do so; to raise arguments relating to career offender status and mitigating circumstances; to advise him that his sentence might be higher than 120 months; and to object to the use of a sentencing guideline as mandatory.
For the following reasons, Defendant's Motion will be denied, and a certificate of appealability shall not issue.
Relief is available under Section 2255 only under exceptional circumstances,when the claimed errors of law are "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed. 2d 417 (1962).
A district court need not hold an evidentiary hearing on a Section 2255 Motion if the motion, files, and records show conclusively that the defendant is not entitled to relief. United States v. Ritter, No. 02-2604, 2004 U.S. App. LEXIS 5692, at *4 (3d Cir. March 26, 2004). Under that standard, a hearing is unnecessary in this case, and I will dispose of the Motion on the record.
2. Ineffective Assistance of Counsel
To demonstrate that counsel was ineffective, a defendant must show that counsel's performance fell below "the wide range of professionally competent assistance" and also that the deficient conduct prejudiced defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Counsel's conduct must be assessed according to the facts of the particular case, viewed as of the time of counsel's conduct. Id. at 689.
Under the prejudice prong, the pertinent question is "whether there is a reasonable probability that, absent the errors," the result would have been different. Id. at 695; see also United States v. Gray, 878 F.2d 702, 709-13 (3d Cir. 1989). The prejudice prong of Strickland rests on "whether counsel's deficient performance renders the result of the . . . proceeding fundamentally unfair," or strips the defendant of a "substantive or procedural right to which the law entitles him." Id. at 844. The Strickland standard for effective assistance of counsel also applies to appellate counsel. Phillips v. Moore, 2005 U.S. Dist. LEXIS 24158 (D.N.J. 2005).
In the context of an ineffective assistance of counsel claim, a court should be "highly deferential" when evaluating an attorney's conduct; there is a "strong presumption" that the attorney's performance was reasonable. Strickland, 466 U.S. at 689. "It is. only the rare claim of ineffectiveness of counsel that should succeed under the properly ...