The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is Defendant Ernest Munoz's ("Munoz") "Motion Under § 2255 to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody", and Plaintiff, United States of America's ("Government"), Response in Opposition. For the reasons set forth below, Munoz's Motion is denied.
On March 4, 2010, a grand jury returned a twelve-count indictment against Munoz charging him with conspiracy, wire fraud, mail fraud and interstate transportation of stolen property.*fn1 (Doc. 53.) These charges stemmed from the theft and online resale by Munoz of more than 23,000 audiobooks with sales estimated at $920,000 during a seven-year period. (Id.) Subsequently, on January 25, 2011, Munoz entered an open guilty plea on each count of the indictment and was ordered by this Court to serve a sentence of forty months incarceration to be followed by three years of supervised release. (Id.) At sentencing, this Court ordered Munoz to report to federal custody to begin serving his sentence on June 21, 2011. (Id.)
On May 17, 2011, Munoz, through his attorney, W. Chris Montoya, Esq., filed a timely notice of appeal. (Doc. No. 55.) Munoz's brief was due to be filed with the Court of Appeals for the Third Circuit ("Third Circuit") on July 14, 2011. (Id.)
Munoz did not report to federal custody on June 21, 2011, as ordered by this Court. (Id.) Consequently, two days later, the Government's motion for a bench warrant was granted, and a warrant was issued for Munoz's arrest. (Doc. 44.)
On July 13, 2011, one day before Munoz's appeal brief was due, the Government filed a motion to dismiss Munoz's appeal due to his fugitive status. (Doc. 55.) On the following day, Munoz's counsel filed an appeal brief arguing that there were two errors at sentencing: (1) in calculating the loss amount, and (2) in applying a two-level enhancement for mass marketing. (Id.) On August 10, 2011, the Third Circuit dismissed Munoz's appeal. (Id.)
Munoz was apprehended on October 26, 2011, at his residence in Stroudsburg, Pennsylvania. (Id.) Since this date, Munoz has been in federal custody serving the sentence imposed by this Court. (Id.)
On September 28, 2012, Munoz filed the current motion under 28 U.S.C. § 2255 ("§ 2255") to vacate, set aside or correct the sentence imposed on him by this Court. (Doc. 53.) On December 10, 2012, the Government filed a response in opposition to this motion. (Doc. 55.) We now proceed to address Munoz's claims.
Under § 2255, Munoz is entitled to relief only if his custody or sentence violate federal law or the Constitution. This statute 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.
A district court has 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 this 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 ...