The opinion of the court was delivered by: William M. Skretny United States District Judge
Presently before this Court is pro se Petitioner James Gaines' Motion to Vacate, Set Aside or Correct his Sentence pursuant to 28 U.S.C. § 2255.*fn1 For the following reasons, Petitioner's motion is denied.
On March 17, 1999, the Grand Jury for the Western District of New York returned a single-count Indictment charging Petitioner with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Apparently, the Government and Petitioner were attempting to reach a plea resolution. In a letter dated June 25, 1999, Petitioner's counsel*fn2 referenced a plea offer which the Government allegedly extended to Petitioner. (Mot. to Vac., Ex. 1, p. 2). Under the proposed plea agreement, Petitioner's sentencing exposure would be 77-96 months, after a reduction for acceptance of responsibility. (Mot. to Vac., Ex. 1, p. 2). Petitioner's counsel noted, however, "[i]t is my understanding, based on our conversations, that you are not interested in this plea offer." (Mot. to Vac., Ex. 1, p. 2). Accordingly, Petitioner's counsel calculated what his guideline range would be if he was found guilty after trial. (Mot. to Vac., Ex. 1, p. 2). Specifically, she indicated that if he went to trial and was found guilty, his sentencing exposure would be 100-125 months or 140-175 months, depending on whether this Court applied a disputed 4-level enhancement to his sentence. (Mot. to Vac., Ex. 2, p. 2). This calculation was based on counsel's understanding that Petitioner had two prior felonies and one misdemeanor. (Mot. to Vac., Ex. 2, p. 2).
Thereafter, counsel became aware that Petitioner had three prior felony convictions involving crimes of violence rather than two, as initially believed. (Gov't Ans., pp. 5-6). The fact that Petitioner had three such prior felony convictions made him an Armed Career Offender under 18 U.S.C. § 924(e). (Gov't Ans., p. 6). As an Armed Career Offender, Petitioner faced a statutory minimum of 15 years in prison.*fn3 The Government contends the Petitioner's counsel advised him that he faced this mandatory minimum.*fn4 (Gov't Ans., p. 6). Petitioner alleges that at no time was he advised that he faced a sentencing enhancement as an Armed Career Offender. (Mot. to Vac., p. 7).
Petitioner contends that his counsel advised him that he might be acquitted if he asserted an entrapment defense. (Mot. to Vac., p. 7).*fn5 Petitioner elected to proceed to trial based on his counsel's alleged representation that Petitioner's sentence "would be the same if the jury rejected [his] entrapment defense." (Mot. to Vac., p. 8).
On June 1, 2000, a jury found Petitioner guilty of being a felon in possession of a firearm. This Court sentenced Petitioner to 188 months in prison and five years of supervised release on September 7, 2000. On September 14, 2000, Petitioner appealed to the United States Court of Appeals for the Second Circuit, arguing: (1) that there was insufficient evidence presented against him to sustain a conviction; (2) that this Court gave an improper instruction to the jury; and (3) it erred in refusing to grant a motion for downward departure in Petitioner's sentence. On August 12, 2002, the Second Circuit issued an opinion affirming Petitioner's conviction. United States v. Gaines, 295 F.3d 293 (2nd Cir. 2002). Petitioner commenced the instant action pro se on June 2, 2003, by filing the instant Motion to Vacate his Sentence pursuant to 28 U.S.C. § 2255.
Twenty-eight U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences.That section provides, in pertinent part, that:
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 attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
The Second Circuit has held that a "collateral attack on a final judgment in a criminal case is generally available under [Section] 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.'" Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)). Under 18 U.S.C. § 2255, Petitioner bears the burden of proving such a fundamental ...