United States District Court, E.D. Pennsylvania
R. BARCLAY SURRICK, J.
Presently before the Court is Petitioner Hakiem Johnson's pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1634). For the following reasons, the Motion will be denied.
On February 21, 2007, a grand jury returned a 194-count Fifth Superseding Indictment charging Petitioner Hakiem Johnson and twenty-one co-defendants. (ECF No. 295.) Petitioner was charged with conspiracy to distribute 50 grams or more of cocaine base ("crack") and 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (Count 1); use of a communication facility to facilitate the distribution of narcotics, in violation of 21 U.S.C. § 843(b) (Counts 50, 51); possession with intent to distribute narcotics, in violation of 21 U.S.C. § 841(a)(1) (Counts 58, 64); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count 65); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 66). ( Id .)
On August 8, 2008, Defendant entered a plea of guilty to Counts 1 and 65. (Min. Entry, ECF No. 934; see also ECF Nos. 933, 935). Count 1 carried a mandatory minimum sentence of 10 years. Count 65 carried a mandatory minimum sentence of five years, to run consecutively to Count 1. The plea was pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, with an agreed upon sentence of 15 years (180 months) incarceration. On June 19, 2009, the Court imposed the 180-month sentence. (Min. Entry, ECF No. 1130; see also ECF No. 1131.) No appeal was filed.
Petitioner filed the instant Motion on January 21, 2014, as a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, in the United States District Court for the Northern District of West Virginia, where he was incarcerated. See Johnson v. O'Brien, Civ. No. 14-00006 (N.D. W.Va., filed Jan. 21, 2014), at ECF No. 1. On December 15, 2014, the Northern West Virginia District Court entered an Order adopting the Report and Recommendation ("R&R") of Magistrate Judge James Seibert. The court ordered that the Petitioner's motion under § 2241 be construed as a motion under § 2255 and that the motion be transferred to this Court. Id . at ECF No. 18. The Motion was transferred to this Court and filed on Petitioner's criminal docket. (Pet'r's Mot., ECF No. 1634.) On January 5, 2015, the Government filed a response to the Motion. (Gov't's Resp., ECF No. 1632.) On March 9, 2015, Petitioner filed a Reply. (Pet'r's Reply, ECF No. 1646.)
II. LEGAL STANDARD
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct a sentence "upon the ground[s] 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). Relief under this provision is generally available "to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989).
While the Court may in its discretion hold an evidentiary hearing on a § 2255 petition, Gov't of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989), such a hearing need not be held if the "motion and the files and records conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992).
In his Motion, Petitioner contends that his convictions on Counts 1 and 65 violate his rights against double jeopardy, and that his trial counsel was ineffective for not seeking to dismiss the counts and for not filing an appeal of his conviction. Petitioner's claims are frivolous.
We review Petitioner's Motion as a § 2255 motion. It is apparent from a review of the Motion that Petitioner seeks to attack his conviction. Section 2255 is the primary means for collaterally attacking convictions and sentences by federal prisoners, like Petitioner. Fraser v. Zenk, 90 F.Appx. 428, 430 (3d Cir. 2004). Section 2241 is available for prisoners only when § 2255 is inadequate to remedy a miscarriage of justice. Id .
A. Timeliness of Petitioner's Motion
A one-year statute of limitations applies to § 2255 motions. 28 U.S.C. § 2255(f). Section 2255(f) provides that a motion to vacate must be ...