The opinion of the court was delivered by: DuBOIS, J.
Petitioner, Nelkis-Gutierrez-Gainza, is currently serving a term of 240 months imprisonment for his conviction of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 (Count One), and distribution of, and aiding and abetting the distribution of, nine kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2 (Count Two). On June 8, 2009, petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 which was imposed by this Court on June 26, 2007. Presently before the Court is petitioner's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255.
Petitioner raises the following issues in his § 2255 Motion:
1. Ineffective assistance of counsel on the ground that counsel failed to argue that he should have been charged as a "mule";
2. Ineffective assistance of counsel for failing to argue that his sentence should be set aside because he wore his prison khakis during the trial and thus was presumed guilty; and,
3. The failure of the Government to prove by a preponderance of the evidence that petitioner had a prior felony drug conviction.
For the reasons stated below, petitioner's § 2255 motion is denied.
Petitioner filed a Notice of Appeal to the United States Court of Appeals for the Third Circuit after imposition of sentence. On July 9, 2008, the Third Circuit affirmed the conviction and sentence imposed on June 26, 2007. United States v. Gutierrez-Gainza, 284 Fed.Appx. 975 (3d Cir. 2008).
A. Claims of Ineffective Assistance of Counsel
1. Standard for Ineffective Assistance of Counsel
"Strickland v. Washington supplies the standard for addressing a claim of ineffective assistance of counsel." United States v. Smack, 347 F.3d 533, 537 (3d Cir. 2003) (citing Strickland, 466 U.S. at 687). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. This standard requires a familiar two-part inquiry. "First, the defendant must show that counsel's performance was deficient," that is, "that counsel's representation fell below an objective standard of reasonableness." Id. at 687--88. The measure for counsel's performance under the first prong of Strickland is "whether counsel's assistance was reasonable considering all the circumstances" including "prevailing professional norms." Id. at 687--88. "Second, the defendant must show that [counsel's] ...