The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: PETITION FOR HABEAS CORPUS RELIEF
Defendant and Petitioner Ronald Smith was convicted by a jury of carjacking and related offenses on June 7, 2005. After the Third Circuit affirmed his conviction and sentence on appeal, Smith filed the current Motion to Vacate/Set Aside/Correct Sentence Under 28 U.S.C. § 2255, asserting several grounds of error. For the following reasons, Smith's Motion will be denied.
I. Background and Procedural History
Smith's conviction arose out of an incident that occurred on January 17, 2004. The Government presented evidence that, on January 17, 2004, Tyrone Lewis was sitting in his car and talking on his cell phone while his car door was partially open. Ronald Smith approached the car, pointed a gun to Lewis's head, instructed him to start up the car, and demanded that Lewis get out. Lewis followed the instructions, while Smith drove the car away with Lewis's wallet. A few minutes later, the Philadelphia Police observed Lewis's car a short distance from where the carjacking occurred. After Smith stopped the car and fled, Officer Butler chased Smith on foot. Smith was apprehended by Officer Butler just after he discarded both a loaded gun and Tyrone Lewis's wallet.
State criminal charges were initially filed against Smith, but they were ultimately dismissed after the U.S. Attorney's Office decided to prosecute him in federal court. A federal grand jury indicted Smith on April 21, 2004. (Doc. 1). A superseding indictment was later entered on September 8, 2004 charging Smith on three counts: (1) carjacking, in violation of 18 U.S.C. § 2119; (2) carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c); and (3) being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). (Doc. 20). After a trial by jury from June 6 to June 7, 2005, the jury returned a verdict of guilty on all counts. (Doc. 56, 57). This Court then held a sentencing hearing for Smith on September 15, 2005 and issued a sentence of 360 months imprisonment, five years of supervised release, a $1,000 fine, and a $300 special assessment. (Doc. 70, 71, 76).
Smith appealed his conviction and sentence to the Court of Appeals. The Third Circuit rendered its decision on August 2, 2007, affirming both the conviction and sentence. See United States v. Smith, 247 Fed. Appx. 321 (3d Cir. 2007).
On December 10, 2008, Smith filed the current Motion to Vacate/Set Aside/Correct Sentence Under 28 U.S.C. § 2255. (Doc. 79). On December 29, 2008, Smith filed a Motion to Amend his petition, seeking to withdraw his fourth ground of error and replace it with a different ground not raised in the initial habeas petition. (Doc. 81). On January 12, 2009, Smith filed a Memorandum in support of his Motion to Vacate. (Doc. 83). After this Court granted the Government an extension of time to respond, the Government filed its Response to Smith's § 2255 petition on April 13, 2009. (Doc. 88). Smith filed his reply on May 13, 2009. (Doc. 89).
II. Standard for § 2255 Petitions
Smith brings this Motion under 28 U.S.C. § 2255, which provides that:
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.
28 U.S.C. § 2255(a). A district court may grant relief under this statute if the court finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b).
III. Points of Alleged Error
In his Motion, Smith raises the following points of alleged error:
(1) Smith's counsel was ineffective for not objecting to the composition of the venire, which Smith contends was not a fair cross section of the community;
(2) Smith's counsel was ineffective for not filing pre-trial motions in the state criminal proceedings and for not pursuing a plea bargain on the state and federal charges;
(3) Smith's counsel was ineffective for not objecting to the constitutionality of one of the statutes under which Smith was convicted, 18 U.S.C. § 922(g);
(4) Smith's counsel was ineffective for not challenging the application of the post-Booker sentencing regime on ex post facto grounds, and for not challenging the imposition of consecutive sentences for the 18 U.S.C. § 922(g) and 18 U.S.C. § 2119 convictions.*fn1
All of Smith's challenges rest on the threshold argument that his counsel was ineffective. Whether a defendant was denied effective assistance of counsel is controlled by the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984). "Under the Strickland standard, in order to prevail on a claim of ineffective assistance of counsel, a petitioner must establish that: (1) counsel's performance was deficient, and (2) counsel's deficient performance prejudiced the defense." ...