The opinion of the court was delivered by: Eduardo C. Robreno, J.
Charles Hines ("Petitioner") is a federal prisoner incarcerated at the Federal Correctional Institution in White Deer, Pennsylvania. On August 11, 2011, Petitioner filed a pro se motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 (hereinafter "§ 2255 Motion") because he argues that this Court erred by breaching the terms of a written plea agreement. For the reasons set forth below, the Court will decline to relitigate Petitioner's § 2255 claim because it was raised and considered on direct appeal. Thus, the Court will deny and dismiss with prejudice Petitioner's motion and no certificate of appealability will issue.
On February 22, 2008, Petitioner pled guilty to violating 18 U.S.C. § 922(g)(1) (convicted felon in possession of firearm). Change of Plea Minutes, ECF No. 18. Petitioner was sentenced to 188 months imprisonment, a five year period of supervised release, a $1,000 fine, and a $100 special assessment. Judgment, ECF No. 34.
Petitioner appealed his sentence to the Third Circuit, arguing that this Court, by sentencing him to 188 months imprisonment, violated the terms of Petitioner's plea agreement with the Government, which stated that the maximum sentence of imprisonment for the crime to which he pled guilty was ten years. United States v. Hines, 378 Fed. App'x 133, 134-135 (3d Cir. 2010). The Third Circuit denied his appeal and the Supreme Court denied Petitioner's subsequent petition for a writ of certiorari. Id., cert. denied, Hines v. United States, 131 S. Ct. 257 (2010).
On August 11, 2011, Petitioner filed a pro se motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. ECF No. 42. The Government responded to Petitioner's motion on August 19, 2011. ECF No. 44. The matter is now ripe for disposition.
A federal prisoner in custody under sentence of a federal court challenging his sentence based on a violation of the United States Constitution or laws of the United States may move the court that imposed the sentence to vacate, set aside, or correct the sentence. See 28 U.S.C. § 2255(a) (Supp. IV 2011). In a § 2255 motion, a federal prisoner may attack his sentence on any of the following grounds: (1) the judgment was rendered without jurisdiction; (2) the sentence imposed was not authorized by law or otherwise open to collateral attack; or (3) there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack. See id. § 2255(b).
However, § 2255 generally "may not be employed to relitigate questions which were raised and considered on direct appeal." United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993) (quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986)). The district court is within its jurisdiction to decline to relitigate issues brought on collateral proceedings under § 2255 if those issues have been raised and decided at both the criminal defendant's trial and on direct appeal. United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981); see also United States v. Harmon, No. 06-315-01, 2009 WL 3837406, at *2 (E.D. Pa. Nov. 13, 2009).
A petitioner is entitled to an evidentiary hearing as to the merits of his claim unless it is clear from the record that he is not entitled to relief.*fn1 The Court must dismiss the motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." R. Governing § 2255 Proceedings for the U.S. District Courts 4(b). A prisoner's pro se pleading is construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 32 (3d Cir. 2011).
Based on the § 2255 Motion and the record of proceedings, it plainly appears that Petitioner is not entitled to relief because his motion presents an issue that has already been considered on direct appeal. Therefore, the Court will deny the motion and dismiss with prejudice.
Petitioner argues in his § 2255 motion that this Court violated the terms of his plea agreement with the Government by imposing a sentence greater than the plea agreement's erroneous representation of a 10-year maximum term of imprisonment. § 2255 Motion 8. Petitioner requests an evidentiary hearing to establish that the plea agreement was lawful as written and agreed to by the parties and that he was entitled to specific performance of the plea agreement's representation of a 10-year maximum term of imprisonment. Id. at 12.
This precise argument has already been considered by the Third Circuit.*fn2 See Hines, 378 Fed. App'x at 134-135 (holding that the plea agreement's erroneous representation of 10-year maximum term of imprisonment was harmless error). "Once a legal argument has been litigated and decided adversely to a criminal defendant at his trial and on direct appeal, it is within the discretion of the district court to decline to reconsider those arguments if raised again in collateral proceedings under 28 U.S.C. § 2255." Orejuela, 639 F.2d at 1057. The court in Orejuela also noted that there are "strong policies favoring finality in litigation and the conservation of scarce ...