The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Timothy Goodwin (hereinafter "Petitioner") filed the instant motion pursuant to 28 U.S.C. § 2255 seeking to vacate his conviction and sentence. Petitioner was allowed to supplement his motion several times. The government has opposed the motion inasmuch as it seeks to vacate his conviction or sentence, but consents to granting the motion so as to allow an appeal from the Court's June 2, 2004 Decision and Order in which the Court re-sentenced Petitioner upon remand from the United States Court of Appeals for the Second Circuit.
In 2002, Petitioner was indicted for possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count 1) and for unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922 (g)(1) (Count 2). See Indictment, dkt. no. 1 in United States v. Goodwin, 02-CR-226 (N.D.N.Y.). He entered a guilty plea to Count 1 on January 7, 2003. Petitioner then proceeded to trial on Count 2 and was convicted by jury verdict on January 17, 2003. Petitioner was sentenced on May 16, 2003 to a period of 120 months imprisonment on Count 1 and 262 months imprisonment on Count 2, with the sentences to run concurrently.
Petitioner appealed his conviction and sentence to the United States Court of Appeal for the Second Circuit, arguing that this court erred (1) in denying his motion to suppress evidence obtained through a search warrant because there was an insufficient basis to issue a warrant allowing a "no-knock" search; (2) in admitting evidence of Goodwin's marijuana activities during his separate felon-in-possession trial; and (3) in finding that Goodwin possessed the firearm in connection with a controlled substance offense with the result that his offense level was improperly enhanced from 33 to 34 pursuant to U.S.S.G. § 4B1.4(b)(3)(A).
United States v. Goodwin, 96 Fed. Appx. 13, 2004 WL 551497, at * 1 (2d Cir. April 12, 2004). The Second Circuit affirmed this court's decision as to the first two arguments, and reversed and remanded for clarification as to the basis for the enhancement as raised by the third argument. See id.
On remand, the Court addressed the issue of the enhancement and re-issued the original sentence of 262 months imprisonment in a Decision and Order dated June 2, 2004. See 6/2/04 Dec. & Ord., dkt. no. 87 in United States v. Goodwin, 02-CR-226 (N.D.N.Y.). Familiarity with the June 2, 2004 Decision and Order is presumed.
Petitioner did not timely file an appeal from the June 2, 2004 Decision and Order. Instead, on July 7, 2004, Petitioner's counsel moved to file a late notice of appeal pursuant to Rule 4(b)(4) of the Federal Rules of Appellate Procedure. In this application, counsel asserted:
On June 2, 2004, after a remand by the Court of Appeals, Your Honor clarified the standard upon which a sentencing enhancement pursuant to U.S.S.G. § 4G1.4(b)(3)(A) was applied. Because Mr. Goodwin is incarcerated in a federal prison in Pennsylvania following the Court's decision, I could only discuss the desirability of pursuing an appeal by U.S. mail. As a result, I did not learn that Mr. Goodwin wanted a notice to be filed until after the 10 days had lapsed. Counsel also respectfully submits that no prejudice will result from the filing of the notice of appeal at this time.
Greenwald Ltr., dkt. no. 88 in U.S. v. Goodwin, 02-CR-226. The Court initially granted the application but, after reconsideration, denied the request. See dkt. no. 92 in United States v. Goodwin, 02-CR-226 (N.D.N.Y.)(Finding that "there has not been a sufficient showing of excusable neglect or good cause to warrant an extension of time to file an appeal."). Accordingly, the motion to file a late notice of appeal was denied and no appeal was taken.
Petitioner now brings this action pursuant to 28 U.S.C. § 2255 making various arguments attacking his convictions and sentence. Petitioner's arguments fall into two categories. The first are substantive arguments concerning legal issues that were available but not raised on direct appeal. The second are allegations that his attorney was constitutionally ineffective because he failed to argue the substantive issues in the first category, failed to advance certain other arguments, provided improper legal advice, and failed to file a timely Notice of Appeal from the Court's June 2, 2004 Decision and Order. The Court will address the arguments seriatim.
A § 2255 challenge is limited to claims 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." 28 U.S.C. § 2255. Thus, relief pursuant to section 2255 is available 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)). In a Section 2255 proceeding, a petitioner bears the burden of proof by a preponderance of the evidence. See Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000).
b. Arguments Not Raised On Direct Appeal
"It is well settled that a Section 2255 motion is not a substitute for direct appeal." Graff v. United States, 269 F. Supp.2d 76, 78 (E.D.N.Y. 2003)(citing United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998)). Accordingly, "Section 2255 claims not raised on direct review are procedurally barred unless they raise constitutional or jurisdictional claims, or result in a 'complete miscarriage of justice.'" Johnson v. United States, 313 F.3d 815, 817 (2d Cir. 2002)(quoting Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996)). "Where a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, the claim may be raised in a § 2255 motion only if the defendant can demonstrate either:
(1) cause for failing to raise the issue, and prejudice resulting therefrom; or (2) actual innocence." Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998)(citing Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993)); see Arroyo v. United States, 2002 WL 662892, at * 2 (S.D.N.Y. April 22, 2002)(same) (citing Amiel v. United States, 209 F.3d 195, 198 (2d Cir. 2000)). This rule does not apply to claims of ineffective assistance of counsel. Massaro v. United States, 123 S.Ct. 1690, 1696 (2003).
To demonstrate cause, a petitioner must be able to show that the factual basis for a claim was not reasonably available, despite the exercise of reasonable diligence. United States v. Helmsley, 985 F.2d 1202, 1205-08 (2d Cir. 1993). The "cause" must be "something external to the petitioner, something that cannot fairly be ...