The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
Presently before the court is petitioner's motion to correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth in this Memorandum-Decision and Order, petitioner's motion is denied.
On March 14, 1995, petitioner pled guilty to two counts of illegal possession of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Minute Entry, Document ("Doc.") 29 in Case No. 94-CR-458. At the July 21, 1995 sentencing hearing, the court denied petitioner's motion to correct an allegedly erroneous finding in the Presentence Investigation Report with regard to the number of firearms involved in the offense, and sentenced him to 48 months imprisonment on each of the two counts, to be served concurrently. Minute Entry, Doc. 38 in Case No. 94-CR-458; Sept. 19, 1995 Judgment, Doc. 44 in Case No. 94-CR-458.
On July 27, 1995, petitioner filed a notice of appeal to the Second Circuit from the sentence imposed by this court. Notice of Appeal, Doc. 39 in Case No. 94-CR-458. On September 11, 1995, petitioner filed the instant section 2255 motion to correct his sentence. Motion Pursuant to 28 U.S.C. § 2255 ("Petitioner's Motion"), Doc. 1 in Case No. 95-CV-1287. On September 20, 1995, the Second Circuit dismissed petitioner's appeal due to his failure to timely perfect the appeal. Mandate, Doc. 45 in Case No. 94-CR-458.
The court must first determine whether petitioner is procedurally barred from bringing the instant motion because he failed to perfect a direct appeal. "It is well-settled that where a petitioner does not bring a claim on direct appeal, he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom." Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 167-68, 102 S. Ct. 1584, 1594, 71 L. Ed. 2d 816 (1982)); see also Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993); Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). Of particular relevance to the case at bar, the Second Circuit Court of Appeals, in United States v. Pipitone, 67 F.3d 34 (2d Cir. 1995), stated that a petitioner must show "cause and prejudice if there is a complete failure to take a direct appeal." Id. at 38 (citing Scott v. United States, 997 F.2d 340, 342 (7th Cir. 1993)).
Petitioner filed the instant motion after filing a notice of appeal. The direct appeal was dismissed by the Second Circuit because petitioner failed to perfect the appeal. Sept. 20, 1995 Mandate, Doc. 45 in Case No. 94-CR-458. In making the instant motion however, petitioner has not offered any explanation for the default. Absent the requisite showing of cause and prejudice, petitioner's collateral attack is procedurally barred because of the failure to perfect a direct appeal. See Pipitone, 67 F.3d at 38. Thus, the court denies petitioner's motion to correct the sentence. Assuming, arguendo, that the instant motion is not procedurally barred, the court turns to a discussion of the merits.
Petitioner bears the burden of establishing by a preponderance of the evidence that he is entitled to relief in a collateral attack on his conviction under 28 U.S.C. § 2255. United States v. DiCarlo, 575 F.2d 952, 955 (1st Cir. 1978). Petitioner carries the same burden in showing that he is entitled to an evidentiary hearing. Id. The court may summarily dismiss the motion based upon a review of the record, moving papers and any attached exhibits and affidavits "if it plainly appears . . . that the movant is not entitled to relief." Rule 4(b) of the Rules Governing Proceedings in the United States District Courts Under Section 2255 of Title 28, United States Code ("Rules Governing § 2255 Proceedings"). In making a determination whether to hold a hearing and whether to summarily dismiss a section 2255 motion, the court may rely on its own recollections and observations. United States v. Polizzi, 926 F.2d 1311, 1320 (2d Cir. 1991). Indeed, "one of the purposes for which Congress passed Section 2255 was to make use of the personal observations of the trial judge of trial occurrences in ruling upon attacks on convictions because of such occurrences." Panico v. United States, 412 F.2d 1151, 1155-56 (2d Cir.), cert. denied, 397 U.S. 921, 90 S. Ct. 901, 25 L. Ed. 2d 102 (1969) (citations omitted). Because the record conclusively shows that petitioner is not entitled to relief, the instant decision is made without the benefit of a hearing. 28 U.S.C. § 2255; Rule 4(b) of the Rules Governing § 2255 Hearings.
The limited grounds upon which a petitioner may collaterally attack a sentence under section 2255 is well established. "A collateral attack on a final judgment in a federal criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962), and citing Napoli v. United States, 32 F.3d 31, 35 (2d Cir. 1994), modified on other grounds, 45 F.3d 680 (1995), cert. denied, U.S. , 115 S. Ct. 900, 130 L. Ed. 2d 784 and cert denied, U.S. , 115 S. Ct. 1796, 131 L. Ed. 2d 724, and cert. denied, U.S. , 115 S. Ct. 2015, 131 L. Ed. 2d 1014 (1995); Hardy v. United States, 878 F.2d 94, 97 (2d Cir. 1989)).
Petitioner argues that the government failed to disclose exculpatory evidence, in violation of his constitutional right to due process of law. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972). In addition, petitioner argues that the court's decision to impose a 3-level increase to the base offense level was premised on an erroneous factual finding regarding the number of firearms involved ...