The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER
Presently before the Court for disposition is the MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (Document No. 51), the MOTION TO DISMISS MOTION TO VACATE (Document No. 58), the MOTION FOR EXTENSION OF TIME TO FILE NEW MOTION TO VACATE SENTENCE (Document No. 59) filed pro se by Petitioner / Defendant Freddie Lamont Cleckley ("Cleckley") and the RESPONSE in opposition filed by the government (Document No. 61). For the reasons discussed below, the Court will deny the § 2255 motion without holding an evidentiary hearing.
The relief sought under 28 U.S.C. § 2255 is reserved for extraordinary circumstances. See Brecht v. Abrahamson, 507 U.S. 619 (1993). Section 2255 provides, in relevant part:
A prisoner in custody under sentence of a [federal] court . . . 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.
Although § 2255 includes a provision for a prompt evidentiary hearing, a federal court may deny a § 2255 motion without holding an evidentiary hearing if the "motion and the files and records of the case conclusively show" that the petitioner is not entitled to relief. 28 U.S.C. § 2255; see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005); Rule 8(a), 28 U.S.C. foll. § 2255. Such is the case in this instance.
Procedural and Factual Background
The parties and the Court are familiar with the extensive background facts of Cleckley's criminal prosecution, conviction, and sentence. Therefore, the Court will not detail the facts again. However, the following is a brief recitation of the procedural facts salient to the issues presently pending before the Court.
On August 5, 2009, a federal grand jury in the Western District of Pennsylvania returned a three-count indictment in which Cleckley was charged at Count One with Possession with Intent to Distribute 5 Grams or More of Cocaine Base in the Form Commonly Known as Crack, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B)(iii); at Count Two with Possession of A Firearm in Furtherance of a Drug Trafficking Crime, in violation of Title 18, United States Code, Section 924(c)(1)(A)(i); and at Count Three with Possession of a Firearm by a Convicted Felon, in violation of Title 18, United States Code, Section 922(g)(1).
On October 30, 2009, Defendant, with counsel, appeared at an arraignment and pled Not Guilty to the charges. At that time, Defendant also waived his detention hearing and wavied the Interstate Agreement on Detainers Act. He was returned to Western Penitentiary to continue serving his state sentence for a parole violation.
Through counsel, Cleckley filed a number of pretrial motions, including (i) a motion to produce the cocaine for examination, (ii) a motion in limine to compel disclosure of uncharged misconduct evidence, (iii) a motion for release of Brady materials and (iv) a motion for production of Jencks material. By Memorandum Order of December 9, 2009, the Court ordered the government to provide the cocaine for testing and provide the firearm for fingerprinting.
On April 23, 2010, Defendant, with counsel, appeared before the Court and pled guilty to Counts One, Two, and Three of the Indictment. There was no plea agreement between the parties.
On July 20, 2010, a Presentence Investigation Report ("PSI") was prepared by the Probation Office. Due to Cleckley's Career Offender Status, pursuant to USSG § 4B1.1, his Base Offense Level was determined to be 34, which was reduced by 3 levels for his acceptance of responsibility, which resulted in a Total Offense Level of 31. Cleckley's Criminal History Score was VI, based upon 16 criminal history points and the fact that he was considered a career offender.
On August 18, 2010, Cleckley, through counsel, made several objections to the PSI. First, Defendant argued that the Court should exercise its discretion to sentence him below the applicable sentencing Guidelines in light of the crack / powder cocaine differential in the Guidelines. The Court found this objection to be without merit as the crack / cocaine ratio disparity did not affect Defendant's offense level calculations under the Career Offender guidelines.
Next, Defendant objected to the two-level enhancement he received for possession of a stolen firearm. According to Cleckley, he did not know that the firearm he possessed was stolen. Again, the Court rejected this objection on the basis that Defendant's offense calculations were subject to and controlled by the Career Offender guidelines and, therefore, the enhancement did not affect the calculations under the Career Offender guidelines.
Defendant's next two objections involved the calculations of his Criminal History Category. Although the Court agreed to reduce his Criminal History Score by one point, the reduction did not affect the calculations under the Career Offender guidelines because a career offender's criminal history category in every case is a Category VI, which represents a criminal history score of 13 or more.
Likewise, Defendant's objection to the three (3) points he was assessed pursuant to USSG 4A1.1(a) for his conviction for Driving Under the Influence was denied. The Court pointed out that assuming arguendo that the Court would find that three (3) points overrepresented the severity of that prior conviction, the calculations for Defendant's criminal history category would not change as § 4B1.1 specifically provides that "[a] career offender's criminal history in every case under this subsection shall be Category VI." See Tentative Findings and Rulings, Document No. 36.
Defendant was advised that as to Counts One and Three of the Indictment, he would be sentenced based on the Career Offender guidelines which resulted in a total offense level of 31 with a Criminal History Category of VI. The applicable advisory guideline term of imprisonment range was 188 to 235 months. As to Count Two, the statute provides that Defendant shall be sentenced to no less than five (5) years to ...