The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is Petitioner Tracy Clark's ("Clark" or "Petitioner") pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. §2255. For the reasons set forth below, this Motion is denied.
On July 26, 2001, a federal grand jury in the Eastern District of Pennsylvania returned an indictment charging Tracy Clark with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). On April 17, 2002, a grand jury returned a superseding indictment charging Clark with a violation of the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"). The superseding indictment added a Notice of Prior Convictions based on his previous state convictions for: (1) robbery (Philadelphia Court of Common Pleas, CP No. 8512-2072); (2) possession with intent to distribute a controlled substance (Philadelphia Court of Common Pleas, CP No. 8905-4086); and (3) conspiracy to commit aggravated assault (Philadelphia Court of Common Pleas, CP No. 9104-4421). The federal charges stemmed from the execution of a search warrant at the home of Anthony Miller on December 8, 1999. During the execution of the search warrant, law enforcement officers found Clark, a convicted felon, in possession of a .45 caliber semi-automatic handgun.
On May 6, 2002, Clark pled guilty to the felon-in-possession charge. On August 27, 2002, the Court granted defense counsel Nino Tinari's motion to withdraw. Subsequently, on August 29, 2002, the Court appointed new counsel, Patrick Egan ("Egan"), to represent Clark. On November 4, 2002, Clark filed a motion to withdraw his guilty plea. On March 31, 2003, the Court granted Clark's motion.
Clark proceeded to trial before this Court on June 3, 2003. On June 4, 2003, Clark was convicted by a jury of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and the ACCA. On July 11, 2003, Clark was sentenced to 293 months imprisonment, five years of supervised release, and a fined a $100 special assessment. Clark was represented by Egan at his sentencing hearing. Clark filed a timely notice of appeal. On October 29, 2004, the Third Circuit affirmed the conviction and sentence.
On December 12, 2004, Clark filed a petition for a writ of certiorari alleging that this Court violated his Sixth Amendment right by enhancing his sentence under the ACCA without a jury determination nor an admission by him. On January 7, 2005, the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005). On January 25, 2005, the Supreme Court denied certiorari.
On January 26, 2006, Clark filed his first motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence on the primary basis that his counsel, Egan, was constitutionally ineffective for failing to properly advise him as to the possible consequences of withdrawing the guilty plea. In that motion, Clark also contended he should be resentenced as a result of the Booker decision. On June 6, 2006, the Court appointed new counsel, Christopher Warren, ("Warren") to represent Clark. On October 27, 2006, after an evidentiary hearing, the Court denied Clark's request for a new trial based on ineffective assistance of counsel and specifically noted that the decision to withdraw the guilty plea was Clark's decision after discussions with counsel. However, the Court granted Clark's request to be resentenced because his direct appeals were not final prior to the Booker decision.
Clark was represented by Warren at the resentencing proceeding on November 27, 2006. At resentencing, in light of Booker, the Court noted that the sentencing guidelines were advisory and addressed the sentencing factors outlined in 18 U.S.C. § 3553(a). The Court found that the guildeline range was 235 months to 293 months. Ultimately, the Court resentenced Clark to 235 months imprisonment.
After his resentencing, Clark filed an untimely pro se notice of appeal and related motion for an extension of time to appeal. On March 12, 2007, the Court granted Clark's motion for an extension of time and retroactively made Clark's notice of appeal timely. Subsequently, Warren filed an Anders motion with the Third Circuit on the grounds that there were no meritorious issues for appeal.
In his pro se brief before the Third Circuit, Clark raised the claim that his counsel was ineffective for failing to contest the District Court's determination that his prior convictions qualified as predicate offenses pursuant to the ACCA in light of Shepard v. United States, 544 U.S. 13 (2005). The Third Circuit granted counsel's motion to withdraw and declined to address the ineffective assistance claim on basis that such "claims are 'best decided in the first instance in a collateral action' rather than on direct appeal." United States v. Clark, 282 Fed. Appx. 189, 191 (3d Cir. 2008) (citation omitted).
In the instant § 2255 Motion, Clark contends that "[Warren's] representation was in fact constitutionally ineffective during the resentencing and appellate stages for failing to challenge the documentation relied upon for the ACCA enhancement as violative of the rule announced in Shepard." (Clark's Mot. at 25.) Clark argues that the Shepard case "precluded use of his previous drug conviction because the Government failed to submit materials consistent with Shepard to establish that the controlled substance to which [sic] formed the basis of the state offense prescribed a statutory maximum in excess of 10 years." (Id. at 17.)
Clark is entitled to relief only if his custody or sentence violates federal law or the Constitution. Section ...