The opinion of the court was delivered by: Judge Munley
Before the court for disposition is Defendant Lydia Cooper's (hereinafter "defendant") motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. The matter has been fully briefed and is ripe for disposition.
Defendant pled guilty to conspiracy to distribute and possess with intent to distribute cocaine base (crack) in violation of 21 U.S.C. § 846 on September 2, 2004 (Doc. 170).*fn1 The court on January 31, 2005, sentenced petitioner to 105 months of incarceration. (Doc. 316). Petitioner appealed her sentence to Third Circuit Court of Appeals. (Doc. 324, Notice of Appeal). The Third Circuit affirmed the judgment of this court on October 19, 2005. (Doc. 413). The court issued its mandate on April 24, 2006. (Doc. 414). On February 13, 2007, petitioner filed the instant motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. 443). We issued an order directing petitioner to execute a notice of election pursuant to United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999). (Doc. 444). Petitioner never returned the notice of election, and therefore, we indicated that we would rule upon the motion as filed and ordered the government to file a response. (Doc. 448). The government filed its response on August 23, 2007, and the petitioner filed her reply brief on December 3, 2007. (Doc. 461, Doc. 466). The matter is thus ripe for disposition.
Defendant moves for relief under 28 U.S.C. § 2255, which reads in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. 28 U.S.C. § 2255.
Defendant raises seven (7) issues. They are: 1) Was defendant erroneously sentenced as a career offender? 2) Was counsel ineffective for failing to conduct a factual inquiry that would have shown that the defendant's prior convictions are "related" under the United States Sentencing Guidelines? 3) Was counsel ineffective for abandoning the argument that defendant was clearly not a career offender? 4) Was counsel ineffective for failing to realize that prior convictions were "related" under the United States Sentencing Guidelines? 5) Did defendants' sentence violate the prohibition of cruel and unusual punishment under the Eight Amendment of the Constitution? 6) Is the defendant's sentence harsh and extremely excessive under the nature and circumstances of the case and pursuant to the United States Supreme Court's ruling in United States v. Booker? 7) Is defendant entitled to the appointment of counsel?
The government first argues that defendant's first, fourth, fifth and sixth claims should be denied as they are procedurally defaulted.
The United States Supreme Court has "strictly limited the circumstances under which a guilty plea may be attacked on collateral review." Bousley v. United States, 523 U.S. 614, 621 (1998). A section 2255 motion is not to be used as a substitute for a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982). If a federal prisoner did not raise a claim on direct appeal, for purposes of collateral attack that issue is considered "procedurally defaulted" A procedurally defaulted claim cannot be raised in a section 2255 motion unless the defendant can demonstrate:
1) "cause" excusing the default and actual prejudice or 2) actual innocence. Bousley, at 622. In the instant case, defendant raised two issues on direct appeal. She asserted that her sentence was unreasonable under United States v. Booker, and she challenged this court's failure to depart downward under United States Sentencing Guideline ("U.S.S.G.") § 4A1.3. United States v. Cooper, 4 ...