The opinion of the court was delivered by: Conti, District Judge.
Pending before the court is a motion to vacate or set aside judgment of conviction by a person in federal custody pursuant to 28 U.S.C. § 2255 ("petitioner's motion") (Docket No. 129) filed by petitioner James Semme Frazier ("petitioner"). Upon reviewing petitioner's motion and the government's brief in opposition and considering the evidence adduced during the hearing held on petitioner's motion and the proposed findings of fact and conclusions of law submitted by each party, the court will deny petitioner's motion for the reasons set forth herein.
On September 10, 2002, a federal grand jury returned an indictment charging petitioner with possession of a firearm by a convicted felon on or about May 31, 2002, in violation of 18 U.S.C. § 922(g)(1) (count one) and with possession with intent to distribute five (5) grams or more of a mixture and substance containing a detectable amount of cocaine base, in the form commonly known as crack, a Schedule II controlled substance, on or about June 8, 2002, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) (count two). (Docket No. 1.)
On May 9, 2003 and May 23, 2003 this court held a suppression hearing on petitioner's motion seeking to suppress evidence at each count returned in the indictment. (Docket Nos. 27, 29.) This court denied petitioner's suppression motion. (Docket No. 33.)
The court granted petitioner's motion to sever counts one and two for trial. Count one was tried first and on October 2, 2003, a jury found petitioner guilty of possession of a firearm by a convicted felon (count one). On November 12, 2004, petitioner was sentenced at count one to imprisonment for a term of eighty-five months to be followed by supervised release for a term of thirty-six months. Although petitioner did not appeal the suppression ruling or the sentence at count one, "there is no procedural default for failure to raise an ineffective-assistance claim on direct appeal. . . ." Massaro v. United States, 538 U.S. 500, 503 (2003) (citations omitted).*fn1
On or about December 2, 2004 the clerk of court received and filed petitioner's motion to vacate or set aside judgment of conviction by a person in federal custody pursuant to 28 U.S.C. § 2255.*fn2 (Docket No. 129.) In his motion, petitioner listed numerous 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 or set aside the judgment of conviction against petitioner.
Specifically, petitioner alleged ineffective assistance of counsel in violation of the Sixth Amendment based upon counsel's performance at the suppression hearing and the trial at count one. Petitioner further alleged ineffective assistance of counsel in violation of the Fourth Amendment based upon certain purported failures of counsel at the suppression hearing.
On January 18, 2005, the court issued a notice that the motion to vacate had been filed and directed the government to file its response and a brief in opposition on or before February 4, 2005. (Docket No. 136.) After being granted several motions to extend time to respond, on April 15, 2005, the government filed its response in opposition, nunc pro tunc. (Docket No. 156.)
On February 1, 2006, the court issued an order granting petitioner an evidentiary hearing and appointed counsel to represent petitioner. (Docket No. 206.) The court granted the government's motion for limited discovery. (Docket No. 224.) After discovery, an evidentiary hearing was held on April 27, 2007, May 4, 2007 and May 25, 2007. At the evidentiary hearing on petitioner's motion, petitioner abandoned all but one of his claims. Petitioner only challenged his counsel's alleged failure to impeach the credibility of the arresting officer at the suppression hearing and educe a credibility ruling from the court. Evid. Hr'g Tr. 5/25/07 at 38; 46-47. On October 31, 2007, petitioner filed proposed findings of fact and conclusions of law. On November 1, 2007, the government filed proposed findings of fact and conclusions of law.
The court now makes the following findings of fact and conclusions of law.
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 motions and files and records of the case show conclusively that the movant is not entitled to relief. 28 U.S.C. § 2255(b) ("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).
Under 28 U.S.C. § 2255(a), 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." 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 ALAN WRIGHT, NANCYJ. KING& SUSANR. KLEIN, 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(b). In this proceeding only the first ground -- that the sentence was imposed in violation of the Constitution or laws of the United States -- is implicated.
A. Suppression Hearing ...