The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
MEMORANDUM OPINION CONTI, District Judge
Pending before the court is a motion to vacate, set aside, or correct sentence by a person in federal custody filed by Roscoe B. Thompson ("Thompson" or "petitioner") pursuant to 28 U.S.C. § 2255 (ECF No. 1000).*fn1 After reviewing petitioner's motion, the brief in opposition (ECF No. 1015) filed by the United States of America (the "government"), petitioner's reply (ECF No. 1022) and the government's response to petitioner's reply (ECF No. 1065), the court will deny the motion for the reasons set forth below.
In 2002 and 2003, law enforcement agents obtained evidence, inter alia, by means of cellular wiretaps that Michael Good ("Good"), together with a number of other individuals, including Thompson, Daniel Matthews ("Matthews"), and Larry Ferguson ("Ferguson"), were involved in the distribution of large quantities of cocaine, crack, and heroine in the North Side area of Pittsburgh, Pennsylvania. As a result of the investigation several individuals, including Thompson, were jointly charged with conspiracy to possess and distribute controlled substances from November 20, 2002, to February 8, 2003 and other related charges. Several individuals pleaded guilty and agreed to cooperate. After the Drug Enforcement Administration conducted debriefings of the cooperating individuals, a twenty-five-count superseding indictment was returned by a grand jury on August 5, 2004. (ECF No. 1).
Petitioner, Matthews, and Ferguson were tried before a jury beginning on May 9, 2005. A mistrial, however, was declared on June 29, 2005. A retrial began on January 12, 2006, and the jury found Thompson guilty of five counts: one count of conspiracy to distribute and possession with the intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(B)(I) and 846 (count one); two counts of possession with the intent to distribute a quantity of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(C) (counts eight and seventeen); one count of conspiracy to distribute and possession with the intent to distribute 50 grams or more of cocaine base in the form commonly known as crack, in violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(A)(iii), and 846 (count twenty-one); and one count of possession with the intent to distribute a quantity of cocaine base in the form commonly known as crack, in violation of 21 U.S.C. §§ 841 (a)(1) and 841 (b)(1)(C) (count twenty-two).
Thompson appealed his convictions arguing, among other things, that the evidence was insufficient for a jury to find him guilty of the heroin conspiracy or the crack cocaine conspiracy. The court of appeals rejected "out of hand" his argument with respect to the heroin conspiracy (count one) and concluded with respect to the crack-cocaine conspiracy (count twenty-one) that "[t]he evidence adduced at trial easily supports a rational guilty verdict." United States v. Ferguson, 394 F. App'x 873, 876 n.3, 879 (3d Cir. 2010) ("the record amply supports Thompson's agreement with Good to sell crack-cocaine to others"). The Court of Appeals for the Third Circuit affirmed Thompson's convictions on September 21, 2010. Id. The Supreme Court denied certiorari. Thompson v. United States, 131 S.Ct. 1579 (2011).
Because the government filed an information pursuant to 21 U.S.C. § 851, the defendant for his conviction at county twenty-one (conspiracy to distribute crack cocaine) was sentenced to a mandatory minimum sentence of not less than twenty years imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A)(iii). He was sentenced for his convictions at counts one, eight, seventeen and twenty-two to one hundred sixty-eight months at each count. The court ordered that all sentences would concurrently run. Thompson filed the motion which is the subject of this opinion pursuant to 28 U.S.C. § 2255. (ECF No. 1000).
Under § 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside, or correct the 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). In Hill v. United States, 368 U.S. 424 (1962), the Supreme Court of the United States read the statute as stating four grounds upon which relief can be claimed:
(1) "that the sentence was imposed in violation of the Constitution or laws of the United States," (2) "that the court was without jurisdiction to impose such sentence," (3) "that the sentence was in excess of the maximum authorized by law," and (4) that the sentence "is otherwise subject to collateral attack."
Id.at 426-27 (quoting 28 U.S.C. § 2255(a)). The statute provides as a remedy for a sentence imposed in violation of law that "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
A district court is required to hold an evidentiary hearing on a motion to vacate sentence filed pursuant to § 2255 unless the motion, files, and records of the case show conclusively that the movant is not entitled to relief. 28 U.S.C. § 2255 ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). An evidentiary hearing is not required, however, if the court determines that the motion, files, and records of the case conclusively support that the motion should be denied as a matter of law. Id.
Petitioner attacks his sentence imposed for the conviction at count twenty-one under the Fair Sentencing Act of 2010 ("FSA"), Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 20120), challenges the jury instructions and asserts his trial and appellate counsel rendered ineffective assistance of counsel in violation of his Sixth Amendment rights. Each challenge will be addressed.
A. Challenge under the FSA
Petitioner argues that the FSA, which was enacted on August 3, 2010, applies retroactively and he should be resentenced under the new 18-to-1 ratio for crack cocaine offenses and that the FSA makes the constitutionality of 18 U.S. C. § 841(b) dubious. Thompson was sentenced on October 30, 2006. A motion to resentence due to the retroactivity of the FSA is generally asserted under 18 U.S.C. § 3582(c)(2). Even if this challenge by Thompson to his sentence is considered to have been asserted under 18 U.S.C. § ...