The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before this Court is Petitioner Dennis Freeman's ("Freeman") pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion"). For the reasons set forth below, this Motion is denied.
On November 15, 2000, a federal grand jury returned a 12-Count indictment charging Freeman with conspiracy to distribute more than 50 grams of cocaine base ("crack") in violation of 21 U.S.C. § 846, along with other related charges. On September 24, 2001, Freeman filed a motion to suppress evidence found in his apartment and later searches of another residence and two vehicles. We held evidentiary hearings on the motion and denied it on April 9, 2002.
On April 30, 2002, Freeman pleaded guilty to Count 1 of the indictment reserving his right to appeal our denial of his suppression motion pursuant to Federal Rule of Criminal Procedure 11(a)(2). On November 22, 2002, Freeman was sentenced by this Court to 270 months imprisonment, along with a 10-year term of supervised release. On November 27, 2002, Freeman filed a notice of appeal from his sentence. On November 13, 2003, the Third Circuit Court of Appeals affirmed the Judgment of Conviction and Sentence. On December 23, 2003, Freeman filed a petition for rehearing en bancwhich was denied on January 9, 2004. On February 24, 2004, Freeman filed for a writ of certiorari in the United States Supreme Court which was denied on June 1, 2004. On August 4, 2004, Freeman filed a motion for collateral post-conviction relief pursuant to 28 U.S.C. § 2255.*fn1 We denied this motion with prejudice on December 3, 2004, and declined to issue a certificate of appealability. See United States v. Freeman, No. 00-692-01, 2004 WL 2786147, at *1 (E.D. Pa. Dec. 3, 2004).
On September 20, 2006, Freeman filed a pro se motion for relief from judgment pursuant to Federal Rule of Criminal Procedure 60(b). We denied this motion on October 20, 2006 on the ground that it was a de facto claim for relief under 28 U.S.C. § 2255 that had to be brought as such. On April 15, 2008, Freeman filed a pro se motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2), based upon Amendment 706 to the United States Sentencing Guidelines ("Guidelines"), which lowered the base offense levels applicable to crack offenses, and was made retroactive effective March 3, 2008.
We appointed counsel for Freeman,*fn2 and on October 9, 2008, counsel filed a supplemental memorandum of law in support of the motion for a reduction of sentence. On November 10, 2008, we granted a sentence reduction within the limits set by Section 3582(c) and the applicable policy statements set forth in U.S.S.G. § 1B1.10. See United States v. Freeman, No. 00-692-01, 2008 WL 4878396 (E.D. Pa. Nov. 10, 2008). Freeman appealed that decision, and on November 25, 2009, the Court of Appeals affirmed. See United States v. Freeman, 347 Fed. Appx. 761 (3d Cir. 2009).
Freeman filed the instant Motion on June 14, 2010. In this Motion, Freeman claims that at the Section 3582(c) proceeding counsel was ineffective for failing to fully litigate the argument that Freeman should have been granted a two-level reduction under the Guidelines because he had initially been sentenced based on U.S.S.G. § 2D1.1, rather than the otherwise applicable Career Offender provision, U.S.S.G. § 4B1.1.
Freeman is entitled to relief only if his custody or sentence violate federal law or the Constitution. Section 2255 provides, in pertinent part:
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 district court is given discretion in determining whether to hold an evidentiary hearing on a habeas petition under § 2255. See Gov't of the V. I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In exercising that discretion, the court must first determine whether the Petitioner's claims, if proven, would entitle him to relief, and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Gov't of the V.I. v. Weatherwax, 20 F.3d 572, 574 (3d Cir. 1994). Accordingly, a district court may summarily dismiss a motion brought under § 2255 without a hearing where the "motion, files, and records, 'show conclusively that the movant is not entitled to relief.'" United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (quoting U.S. v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)).
In the instant Motion, Freeman asserts a claim of ineffective assistance of counsel. In Strickland v. Washington, the Supreme Court of the United States set forth a two-prong test for evaluating a claim of ineffective assistance of counsel. 466 U.S. 668 (1984). A finding against the Petitioner under either prong is sufficient to find ...