CYNTHIA M. RUFE, Judge.
Before the Court is Defendant Robert Wright's Motion to Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. § 2255, his Motion for Expansion of Record, his Motion for Leave to Conduct Discovery, and his Injunctive Motion for Leave to Amend, and the relevant briefing from both sides. For the reasons that follow, Defendant's motions will be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 16, 2006, Defendant entered a plea of guilty to two counts of distributing cocaine and one count of distributing and aiding and abetting the distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. On March 27, 2007, he was sentenced to 235 months of imprisonment, six years of supervised release, a fine of $10, 000, and a special assessment of $300.
Petitioner's sentence was at the upper end of the range recommended by the United States Sentencing Guidelines, a range that extended to 235 months because five prior felony convictions qualified him as a "career offender" within the meaning of U.S.S.G. § 4B1.1 and because the prior convictions increased the statutory maximum penalty to thirty years. 21 U.S.C. § 841(b)(1)(C).
Petitioner appealed, and his sentence and conviction were affirmed. The pending motions before this Court followed.
As a part of his guilty plea, Defendant waived his appellate rights. This waiver means that Defendant is strictly limited in the types of claims he may bring in his § 2255 motion. One cognizable issue is ineffective assistance of counsel at the sentencing hearing, and he has alleged three such claims: first, counsel did not object to the Government's use of evidence at sentencing that was not revealed at Defendant's plea hearing; second, counsel did not object to the use of prior uncounseled convictions to enhance Defendant's sentence; and third, counsel litigated Defendant's case in a manner that Defendant sees as insufficiently aggressive. In addition to his ineffective assistance of counsel claims, Defendant has sought leave to amend his § 2255 motion to include additional charges that his sentencing hearing was constitutionally deficient.
A. Ineffective Assistance of Counsel Claims
The Sixth Amendment guarantees not only that all criminal defendants are entitled to counsel, but also that their counsel will be effective. In order to make out a claim of ineffective assistance, "the defendant must show that counsel's performance was deficient, " meaning "that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense." Defendant's three claims of ineffective assistance fail.
1. Use of Conduct Outside the Scope of Guilty Plea in Sentencing Determination
Defendant entered an "open" guilty plea, meaning that the Government did not offer to recommend a specific sentence. Defendant states that he thought that the only evidence the Government would adduce at his sentencing hearing would be the same evidence introduced at his plea hearing, namely, evidence of the offense of conviction. Instead, the Government introduced evidence of prior convictions for drug-related offenses that significantly increased the guidelines range. Defendant argues that it was ineffective for his counsel not to object to the Government's offer of evidence that made Defendant eligible for a steeper sentence than what he would have received based solely on the offense conduct. He also argues that it was ineffective for counsel to fail to explain to him that his sentence could reflect conduct outside the scope of his guilty plea.
The record reflects that Defendant's stated expectation that only evidence from the offense of conviction would be used to calculate his sentence was unreasonable and untrue. At a minimum, it was not ineffective for counsel to believe that Defendant fully understood that evidence beyond what was admitted at the plea hearing would be introduced at the sentencing hearing. At his plea hearing, the Court made it clear to Defendant that additional evidence would be heard at his sentencing hearing:
THE COURT: I [will] order that the Probation Department prepare a Pre-Sentence Report which will recommend a calculation, which will prepare a report on your background, and the background of this case to give me all the information that I need to impose a sentence under the sentencing statute, which incorporates not ...