The opinion of the court was delivered by: Donetta W. Ambrose Senior Judge, United States District Court
In this action, Defendant was sentenced for possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. " 841(a)(1) and (b)(2), 18 U.S.C. ' 924(c)(1)(A), and 18 U.S.C. ' 922(g)(1). The Court of Appeals dismissed his notice of appeal on August 3, 2009. Before the Court is Defendant's Motion pursuant to 28 U.S.C. ' 2255, alleging that counsel was ineffective for failing to challenge the five year consecutive sentence for violation of 18 U.S.C. ' 924 (c); that the court erred in admitting certain expert witness testimony; and that he is eligible for relief under the Fair Sentencing Act of 2010 ("FSA"), signed into law on August 3, 2010.
A district court need not hold an evidentiary hearing on a Section 2255 motion if the motion, files, and records show conclusively that the defendant is not entitled to relief. United States v.Ritter, 93 Fed. Appx. 402 (3d Cir. 2004). Under these standards, a hearing is unnecessary in this case, and I will dispose of the Motion on the record.
Relief is available under Section 2255 only under exceptional circumstances, when the claimed errors of law are "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L.Ed. 2d 417 (1962). "A person seeking to vacate his conviction bears the burden of proof upon each ground presented for relief." United States v. Keyes, No. 93-22-2, 1997 U.S. Dist. LEXIS 12109, at *2 (E. D. Pa. Aug. 11, 1997).
Finally, a pro se pleading is held to less stringent standards than pleadings drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 s. ct. 285, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). Thus, a pro se habeas petition should be construed liberally. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998). I will consider Defendant's Motion according to these standards.
Defendant has filed a supplemental Motion, based on the FSA. A defendant whose crime occurred before August 3, 2010 is not entitled to retroactive application of the FSA. United States v. Reevey, No. 10-1812, 2010 U.S. App. LEXIS 25587 (3d Cir. Dec. 14, 2010); United States v. Dickey, No. 9-34, 2011 U.S. Dist. LEXIS 474 (W.D. Pa. Jan. 4, 2011). In this case, Defendant was charged with crimes occurring well before the FSA was signed into law. Accordingly, he is not entitled to retroactive application of the FSA, or to habeas relief on those grounds.
B. INEFFECTIVE ASSISTANCE ...