ROBERT E. PAYNE, Senior District Judge.
Wayne D. Thompson, proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion"). (ECF No. 45.) Thompson asserts entitlement to relief upon the following grounds:
The Government responds that Claim One is barred from review here and Thompson's remaining claims lack merit. (ECF No. 48.) Thompson has replied. (ECF No. 51.) On April 16, 2013, the Court received a brief in which Thompson claims entitlement to relief based upon the decision in United States v. Simmons , 649 F.3d 237 (4th Cir. 2011) (ECF No. 53) (hereinafter "Motion to Amend"). The above matters are ripe for disposition.
I. PROCEDURAL HISTORY
On July 8, 2008, a federal grand jury in the Eastern District of Virginia, Richmond Division, returned a one-count criminal indictment against Thompson charging him with possession with the intent to distribute five grams or more of a mixture and substance containing a detectable amount of cocaine base within 1000 feet of a public school. (Indictment 1, ECF No. 8.) At his arraignment on July 17, 2008, Thompson informed the Court of his desire to proceed pro se. (July 17, 2008 Tr. 5.) The Court granted Thompson's motion and permitted him to proceed pro se. (Id. at 5-6.) The Court directed the Federal Public Defender to remain in the case as stand-by counsel. (Id. at 6.)
On September 15, 2008, the Government filed notice of its intent to seek a sentencing enhancement under 21 U.S.C. § 851(a)(1) based upon Thompson's prior felony drug conviction. (ECF No. 17, at 1-2.)
On September 19, 2008, following a jury trial, Thompson was convicted on the charge set forth in the Indictment. (Verdict Form 1, ECF No. 21.)
Thompson qualified as Career Offender, with a resulting Sentencing Guideline range of 360 months to life. (Presentence Report ("PSR") ¶ 54, Worksheet D, at 1.) Standby counsel moved for a variant sentence. (ECF No. 25.) At sentencing, the Court granted the motion and sentenced Thompson to 300 months of imprisonment. (Dec. 10, 2008 Tr. 12-13.)
Thompson appealed. On appeal, Thompson argued, inter alia, "that his waiver of counsel and election to proceed pro se was involuntary, unknowing, and unintelligent, and that the district court compounded its error by denying Thompson the assistance of stand-by counsel." United States v. Thompson, 355 F.App'x 769, 771 (4th Cir. 2009). The United States ...