The opinion of the court was delivered by: Eduardo C. Robreno, J.
Petitioner William Edward Shaw filed this habeas corpus petition under 28 U.S.C. § 2255, collaterally attacking his supervised release revocation sentence and asking the Court to vacate, set aside, or correct his sentence. He argues that the sentence is improper because the Court sentenced Petitioner to reimprisonment, followed by a new period of supervised release, allegedly authorized by the retroactive application of 28 U.S.C. § 3583(h), in violation of the Double Jeopardy clause. For the following reasons, Petitioner's motion will be denied.
On December 1, 1992, Petitioner, William Edward Shaw, was indicted on the following: (1) conspiracy to commit armed carjacking, in violation of 18 U.S.C. § 371 (Count one); (2) armed carjacking, in violation of 18 U.S.C. § 2119 (Count two); and (3) carrying a firearm during and in relation to a violent crime, in violation of 18 U.S.C. § 924(c)(1) (Count three). Petitioner pleaded guilty to all three counts. On August 3, 1993, the Court sentenced Petitioner to ninety-three months of imprisonment and three years of supervised release.*fn1
While on supervised release, Petitioner committed aggravated assault, a violation of his supervised release conditions. On April 25, 2001, Petitioner was sentenced in state court to seven to fourteen years imprisonment after being found guilty of this offense. On August 15, 2001, following a violation of supervised release hearing, the Court revoked Petitioner's supervised release and sentenced him to one year imprisonment, consecutive with his state sentence, followed by one year of supervised release. On August 29, 2008, Petitioner filed the instant 28 U.S.C. § 2255 petition, attacking his revocation of supervised release sentence as improper.
Section 2255 allows a prisoner in custody to attack his sentence if it was imposed in violation of the Constitution or statute, the court lacked jurisdiction to impose it, it exceeds the maximum allowed by law, or it is otherwise subject to collateral attack. See 28 U.S.C. § 2255. A petitioner is entitled to an evidentiary hearing as to the merits of his claim unless it is clear from the record that the prisoner is not entitled to relief. See United States v. Victor, 878 F.2d 101, 103 (3d Cir. 1989). Here, Petitioner is not entitled to an evidentiary hearing because it is clear from the record that his § 2255 petition should be denied for the following reasons.
Petitioner argues that the Court's imposition of reimprisonment, followed by a new period of supervised release, was improper because statutory amendment 18 U.S.C. § 3583(h),*fn2 authorizing the imposition of an additional term of supervised release following the reimprisonment for a violation of supervised release, was enacted subsequent to Petitioner's original crimes. In the absence of the § 3583(h) amendment, Petitioner asserts that § 3583(e)(3),*fn3 governing imprisonment and revocation of supervised release following a violation of supervised release, is implicated and is silent as to whether the court could impose a new term of supervised release following reimprisonment. Because § 3583(e)(3) does not expressly authorize the imposition of a new term of supervised release following reimprisonment, Petitioner contends that his supervised release revocation sentence, under § 3583(h), violates the Fifth Amendment's Double Jeopardy clause.
The Double Jeopardy clause of the Fifth Amendment provides, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. Amend. V. The Double Jeopardy clause "affords a defendant three basic protections: [It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." United States v. Console, 13 F.3d 641, 663 (3d Cir. 1993) (quoting Ohio v. Johnson, 467 U.S. 493, 498 (1984)).
The Supreme Court "attribute[s] postrevocation penalties to the original conviction." United States v. Dees, 467 F.3d 847, 853 (3d Cir. 2006) (citing United States v. Johnson, 529 U.S. 694, 701 (2000)). In addition, 18 U.S.C. § 3583(a) indicates that supervised release is "part of the sentence." Id. Accordingly, a revocation sentence should be seen as part of the initial sentence, rather than a separate or additional punishment for the same offense. Id. On these facts, the Double Jeopardy clause is not implicated in this case.
Although Petitioner frames his argument as a double jeopardy violation, Petitioner's argument seems to more accurately claim a violation of the Ex Post Facto clause.*fn4 U.S. Const., Art. I., § 9. The Ex Post Facto clause prohibits the application of a law "that changes the punishment and inflicts a greater punishment, than the law annexed to the crime, when committed . . . ." United States v. Johnson, 529 U.S. 694, 699 (2000) (quoting Calder v. Bull, 3 Dall. 386, 390 (1978)). To prevail upon an Ex Post Facto argument, the Petitioner must demonstrate: (1) the law challenged operates retroactively; and (2) the law raises the penalty from whatever the law provided at the time of the criminal conduct. Id.
The United States Supreme Court squarely considered and rejected the argument that sentencing a defendant on a violation of supervised release to reimprisonment, followed by a new period of supervised release, where the underlying crime occurred prior to the § 3583(h) amendment, constitutes a violation the Ex Post Facto clause. Johnson, 529 U.S. at 694. Johnson is controlling here.
In Johnson, the defendant committed a Class D felony in October 1993 and was sentenced to 25 months imprisonment, followed by three years of supervised release. Id. at 697. While on supervised release, the defendant was arrested and later convicted of state forgery offenses, thus violating his supervised release conditions. Id. Following a violation of supervised release hearing, the district court revoked his supervised release, and sentenced the defendant to 18 months imprisonment, followed by 12 months of supervised release. Id. at 698. The defendant appealed his sentence, arguing that the imposition of imprisonment and a new period of supervised release, as authorized by § 3583(h), was a violation of the Ex Post Facto clause because § 3583(h) was enacted after Defendant committed the original offense. Id.
The Supreme Court recognized that the retroactive applicability of § 3583(h) would raise Ex Post Facto concerns and require the Court to consider whether § 3583(h) raises the penalty to the defendant. Id. at 702. The Court noted that § 3583(h) was enacted on September 13, 1994, subsequent to the defendant's commission of the original offense in 1993. Id. Because Congress did not expressly state that § 3583(h) would be given retroactive effect, the Court found the "longstanding presumption directs that § 3583(h) applies only to cases in which that initial offense occurred after the effective date of the amendment. . . ...