MEMORANDUM AND ORDER
J. CURTIS JOYNER, District Judge.
This case is now before the Court on Defendant/Petitioner's Habeas Corpus Motions Under 28 U.S.C. § 2255 (ECF Nos. 75, 77). For the reasons set forth below, the Petitioner's Motions are DENIED.
In September 2006, a jury returned a guilty verdict against the Petitioner, Mumin Basheer, of all three counts of an indictment which charged him with possession with intent to distribute cocaine base, a controlled substance, in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). On May 31, 2007, while awaiting sentencing, the Petitioner filed a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and, simultaneously, a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. This Court, noting that the Petitioner had not timely filed either motion, nonetheless considered both on the merits and denied them without a hearing. United States v. Basheer, No. 05-cr-616-1, ECF No. 54 (E.D. Pa. June 21, 2007) (order denying motion for judgment of acquittal and motion for new trial).
On August 7, 2007, this Court sentenced the Petitioner to 252 months imprisonment, a $300 special assessment, a $1, 500 fine, and 60 months of supervised release. The Court also entered a judgment and order of forfeiture against the Petitioner for several firearms and ammunition items.
Petitioner noticed his appeal of his conviction and sentence to the Third Circuit Court of Appeals on August 23, 2007. In his appeal, the Petitioner argued that: (1) insufficient evidence supported his convictions; (2) this Court improperly granted the Government's motion to include evidence of a prior conviction; (3) this Court improperly admitted certain expert testimony; and (4) this Court made several sentencing errors. The Court of Appeals rejected the Petitioner's arguments and affirmed his conviction and sentence on December 7, 2010. See generally United States v. Basheer, No. 07-3537, 2010 WL 4948960 (3d Cir. Dec. 17, 2010).
Petitioner then petitioned the Supreme Court of the United States for a writ of certiorari. On June 6, 2011, the Supreme Court denied certiorari. Basheer v. United States , 131 S.Ct. 2980 (2011).
The Petitioner filed this petition for habeas corpus relief pursuant to 28 U.S.C. § 2255 with this Court on May 29, 2012, less than one year after the denial of his petition for certiorari. In the petition, he asserts: (1) a Sixth Amendment ineffective assistance of counsel claim at trial based on his trial counsel's failure to present the testimony of an available witness, and (2) a due process claim based on insufficient evidence to convict and his purported actual innocence.
The charges against the Petitioner stemmed from a narcotics selling operation at an abandoned house in Philadelphia. In several separate transactions on December 2, 2003, police officers observed a juvenile receive money from a pedestrian or passing motorist, enter the abandoned house, and give small objects to the pedestrian or passing motorist. After arresting one of the purchasers in one of these transactions, the police officers discovered that the purchaser possessed narcotics. The police officers arrested the juvenile and found him in possession of $3.00. The police officers then entered the abandoned house, where they encountered the Petitioner. The Petitioner fled on foot. The officers who remained at the abandoned house discovered a number of firearms, ammunition items, narcotics, and narcotics packaging material. Other officers pursued the Petitioner and ultimately captured him. The Petitioner had $1, 470 on his person when the officers apprehended him. The jury ultimately found that the Petitioner possessed the narcotics and the firearms found in the abandoned home and that the Petitioner was engaged in narcotics distribution. The jury accordingly found the Petitioner guilty on all counts charged in the indictment.
Section 2255 of Title 28 of the United States Code provides an avenue for individuals under federal custody to challenge their sentences. To succeed in such a challenge, the petitioner must demonstrate 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). The Petitioner's constitutional claims stem from (1) an alleged Sixth Amendment violation, and (2) a due process violation based on insufficient evidence of his guilt and his actual innocence of the crimes of which the jury convicted him.
First, the Supreme Court of the United States has long recognized that the right to counsel under the Sixth Amendment and the Due Process Clauses is crucial to protecting the fundamental constitutional guarantee of a fair trial. See Strickland v. Washington , 466 U.S. 668, 684-85 (1984). In order to establish that counsel's assistance was indeed ineffective, a petitioner must meet both elements of the two-pronged test established in Strickland. First, a petitioner must establish that counsel not only erred, but that counsel's errors were considerable enough to undermine the proceedings to such an extent that the outcome cannot be relied upon as fair and just. Id. at 687. Second, it must also be established that counsel's actions prejudiced the defendant and deprived defendant of a fair and reliable trial. Id. at 687. "Not every error by counsel, even if professionally unreasonable, ... warrant[s] setting aside the judgment of a criminal proceeding.'" Rainey v. Varner , 603 F.3d 189, 197 (3d Cir. 2010) (quoting Strickland v. Washington , 466 U.S. 668, 691 (1984)). A petitioner must demonstrate that counsel's error was prejudicial and that there is a reasonable probability that were it not for the error the outcome of the proceeding would have been different. Id. at 197-98.
Second, defaulted § 2255 "claim[s] may still be reviewed in [a] collateral proceeding if [the petitioner] can establish that [a] constitutional error... has probably resulted in the conviction of one who is actually innocent, " Bousley v. United States , 523 U.S. 614, 623 (1998), such that "in light of all the evidence, ' it is more likely than not that no reasonable juror would have convicted him.'" Id . (quoting Schlup v. Delo , 513 U.S. 298, 327-328 (1995)). The Supreme Court has made it plain that "actual innocence' means factual innocence, not mere legal insufficiency." Id . Moreover, the Supreme Court has never held that "actual innocence" is a freestanding, cognizable claim for habeas corpus relief. See House v. Bell , 547 U.S. 518, 554-55 (2006); Herrera v. Collins , 506 U.S. 390, 400, 404 (1993). ...