The opinion of the court was delivered by: Michael A. Telesca, United States District Judge
Winston Thomas ("Thomas") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 requesting that his sentence, imposed by this Court on May 9, 2003, be vacated, set aside, or corrected on grounds that his conviction was unconstitutionally or unlawfully obtained.
The government opposes Thomas' petition and requests that the petition be denied on grounds that Thomas was not denied any federal or Constitutional right. For the reasons set forth below, I deny Thomas' petition.
On February 14, 2002, a federal grand jury returned a two count Indictment against the petitioner, Winston Thomas. Count One charged Thomas with a violation of 18 U.S.C. § 924(c)(1), possession of a firearm in the furtherance of a drug trafficking crime, and Count Two charged him with a violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(D), possession with intent to distribute a mixture and detectable amount of marijuana.
The petitioner plead not guilty to the charges and waived his right to a jury trial. The government consented to the case being tried before this Court. The trial took place on January 14 through January 16, 2003. On January 23, 2003, the Court issued a Verdict and Order finding the defendant guilty of Count 2, possession with the intent to distribute marijuana, but not guilty of Count 1, possession of a firearm in furtherance of a drug trafficking crime.
On May 9, 2003, Thomas appeared before the Court and was sentenced to a term of eight months incarceration to be followed by two years of Supervised Release, a fine of $2,000, and a mandatory special assessment of $100. The eight-month term of incarceration represented the low end of the applicable guideline range of eight to fourteen months.
On May 16, 2003, the defendant filed a notice of appeal. In his appeal, Thomas raised issues of whether there was sufficient evidence to convict him of the offense of possession with the intent to distribute a mixture and substance containing a detectable amount of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). On May 3, 2004, the United States Court of Appeals for the Second Circuit issued a mandate affirming the defendant's conviction. The defendant was represented by Adrian Burke, Esq. at both the trial and appellate stages.
Thomas is a Jamaican National who has legal resident status in the United States. He is currently being held at the Federal Detention Facility in Batavia, New York subject to a Final Order of Removal issued by the Immigration and Naturalization Service which he is challenging in two petitions to the Second Circuit Court of Appeals.
On March 30, 2005, Thomas filed this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He is now represented by Jon Getz, Esq.
Petitioner alleges the following grounds for relief: (1) ineffective assistance of counsel; (2) violations of the Fifth and Sixth Amendment; and (3) ...