The opinion of the court was delivered by: Sifton, Chief Judge
MEMORANDUM OPINION AND ORDER
On January 5, 2004, Petitioner Rasheen Hicks pled guilty to one count of possession of a firearm by a person convicted of a felony in violation of 18 U.S.C. § 922(g)(1). He is currently serving a 46-month prison sentence.
Presently before the Court is Hicks' petition pursuant to 28 U.S.C. § 2255 requesting that this Court set aside or correct the sentence imposed by this Court on May 4, 2004. Hicks challenges the imposition of his sentence on two grounds: (1) that he entered into a plea agreement, which inaccurately calculated his base offense level, resulting in a base offense level two points above what it otherwise should have been; and (2) that his counsel's assistance was ineffective for allowing him to enter into a plea agreement that incorrectly calculated his base offense level.
For the reasons that follow, the petition is denied.
The following facts are taken from the parties' submissions in connection with this motion and are uncontested except where noted.
Rasheen Hicks was apprehended on October 25, 2003, in Brooklyn, New York, while carrying a Taurus .40 caliber handgun and ammunition. Hicks had previously been convicted in New York State Supreme Court, Kings County, of criminal possession of a control substance in the third degree, a crime punishable by a term of imprisonment of more than one year. On January 5, 2004, Hicks pled guilty to one count of possession of a firearm by a person convicted of a felony in violation of 18 U.S.C. § 922(g)(1) before Magistrate Judge Levy. Although a plea agreement had been discussed, Hicks' guilty plea was not entered pursuant to any agreement.
On May 4, 2004, this Court sentenced Hicks to 46 months of imprisonment, pursuant to U.S. Sentencing Guidelines § 2K2.1, Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition.*fn1 Hicks' sentence recommendation was based on a category IV criminal history and a base offense level of 20, with a 2 level enhancement for obliterating the firearm's serial number and a 3 level reduction for acceptance of responsibility, resulting in a net offense level of 19.
On May 4, 2005, Hicks filed a pro se petition under § 2255 requesting that this Court vacate, set aside or correct his sentence. Hicks challenges his sentence on the two grounds stated above: (1) that his plea agreement incorrectly calculated his offense level and (2) that his counsel was ineffective for allowing him to plead guilty pursuant to that agreement.
For the reasons set forth below, his petition is denied.
As the petition was filed pro se, the court must give the petitioner "every reasonable opportunity to demonstrate a valid complaint," LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991), and construe the "pro se petitioner's motion liberally in his favor," Vasquez v. United States, 1999 WL 549004, at *2 (S.D.N.Y. 1999). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
Section 2255 provides a prisoner in federal custody a limited opportunity to challenge collaterally the legality of the sentence imposed on him by the Court. United States v. Addonizio, 442 U.S. 178, 185 (1979). The sentencing court is authorized by § 2255 to discharge or resentence a defendant if it concludes that "the sentence was imposed in violation of the Constitution . . . was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." § 2255; Addonizio, 442 U.S. at 185. In a § 2255 proceeding, the petitioner bears the burden ...