United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, United States District Judge
Before the Court is a Motion submitted pursuant to Title 28. United States Code, Section 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (u§ 2255 Petition'") filed by Tyrone Alphonzo Wilson ("Petitioner"). Having thoroughly reviewed the Parlies' filings in this case, the Court finds this matter is ripe for judicial determination. For the reasons set forth below. Petitioner's § 2255 Petition is DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
On February 6, 2013, a federal grand jury returned a Third Superseding Indictment charging Petitioner with a total of three counts. ECF No. 210.
On October 4, 2013, Petitioner pled guilty to Count One, Conspiracy to Distribute and Possess with Intent to Distribute Five (5) Kilograms or More of Cocaine in violation of 21 U.S.C. §§846, 841(a)(1) and (b)(1)(A)(ii). ECF No. 302.
On February 26, 2014, Petitioner was sentenced to 121 months imprisonment for Count One. ECF No. 380. The remaining counts of the Third Superseding Indictment were dismissed at sentencing upon a motion by the United Stales. ECF No. 379.
On March 6, 2014, Petitioner filed a Notice of Appeal. ECF No. 382. On August 28, 2014, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") dismissed Petitioner's appeal because he waived his right to appeal in his plea agreement with the Government. ECF No. 483. The Fourth Circuit issued a Mandate on September 19, 2014 making their decision effective as of this date. ECF No. 494.
On November 24, 2014, Petitioner filed a Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offenses pursuant to 18 U.S.C. § 3582 ("§3582 Motion"). ECF No. 523. On August 28, 2015, the Court denied Petitioner's § 3582 Motion. ECF No. 557.
On September 14, 2015, Petitioner, acting pro se, filed the instant § 2255 Petition. ECF No. 559. On February 19, 2016, the Government filed its Response. ECF No. 564. On March 9, 2016, Petitioner filed a Reply. ECF No. 565. Petitioner filed additional exhibits on April 8, 2016. ECF No. 566.
In his § 2255 Petition, Petitioner alleges that he received constitutionally ineffective assistance of counsel because his attorney failed to (1) object to a sentence enhancement for possession of a firearm although his state firearm charge was dismissed and (2) advise him that he may not receive credit for an undischarged term of imprisonment. Mem. in Supp. of Mot. to Vacate 10-12, ECF No. 560.
In response, the Government argues that Petitioner has failed to show that his counsel's representation fell below the objective standard of reasonableness as articulated in Strickland v. Washington, 466 U.S. 668 (1984) because Defense counsel raised these objections during the sentencing hearing and the Court overruled these objections, and therefore, Petitioner's request for relief should be denied. ECF No. 564.
II. LEGAL STANDARDS
A. Section 2255 Generally
When a petitioner in federal custody wishes to collaterally attack his sentence or conviction, the appropriate motion is a § 2255 motion. United Slates v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of the United States Code governs post-conviction relief for federal prisoners. It provides in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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 ...