The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Petitioner Vladimir Roudakov's pro se*fn1 Motion Under 28 U.S.C. § 2255 (Oct. Mot., ECF No. 82; Dec. Mot., ECF No. 84). For the following reasons, Petitioner's Motion will be denied.
In 2005, Petitioner was found guilty by a jury on two counts of filing false federal income tax returns in violation of 26 U.S.C. § 7206(1). He was sentenced to 24 months in prison, followed by one year of supervised release, and a $5,000 fine. (Judgment, ECF No. 44.) In July of 2007, the Third Circuit affirmed the judgment of sentence. United States v. Roudakov, 239 F. App'x 776 (3d Cir. 2007).
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct a sentence "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." 28 U.S.C. § 2255(a). Relief under this provision is generally available "to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989).
While the court may in its discretion hold an evidentiary hearing on a Section 2255 petition, Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989), such a hearing need not be held if the "motion and the files and records conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994).
Petitioner raises three grounds for relief. First, he claims that he was denied the due process of law during his direct appeal, because parts of the trial record were missing. (Oct. Mot. 5.) Next, he claims trial and appellate counsel were ineffective. (Id. at 6.) Finally, he argues that the Government failed to prove the elements of the crimes for which he was convicted. (Id. at 10.)
Petitioner argues that he was denied due process of law because "90% of the defense in this case was unavailable to be examined by the Appeals Court in accurate transcript form." (Id. at 5.) We note that the Government has not responded to this claim.*fn2
Petitioner's direct appeal to the Third Circuit was based on an allegation that this Court had erroneously calculated the proper tax loss for his crimes, and therefore incorrectly calculated his Sentencing Guidelines range. The Third Circuit affirmed our calculation. Roudakov, 239 F. App'x at 778. This was the only issue discussed in the Third Circuit's opinion. It is not clear how additional trial transcripts would have impacted the Third Circuit's handling of this issue. Petitioner's direct appeal was based on a sentencing calculation question, which the Third Circuit determined that this Court had answered correctly. The Third Circuit had no difficulty dealing with the issue knowing of the unavailability of some of the trial transcripts. Since Petitioner has not demonstrated how additional transcripts would have led to a different result, his first claim must be denied.
B. Ineffective Assistance ...