The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Petitioner Rawn McFarlane ("McFarlane") was convicted on April 25, 2005, after pleading guilty to one count of conspiring to distribute and possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841 and 846. On April 20, 2006, McFarlane was sentenced to 120 months imprisonment and 5 years supervised release. Now before the Court is McFarlane's pro se petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the instant petition is denied.
The following facts are drawn from the parties' submissions in connection with this motion and the record from the prior criminal proceedings before the undersigned.
On August 8, 2003, McFarlane, along with seventeen co-defendants, was indicted for conspiring to distribute and possession with intent to distribute cocaine base and marijuana, in violation of 21 U.S.C. §§ 846 and 841. The indictment was superseded several times and the sixth indictment, filed on April 1, 2005, charged McFarlane with one count of conspiring to distribute and possession with intent to distribute cocaine base and marijuana, in violation of 21 U.S.C. §§ 846 and 841; two counts of marijuana distribution in violation of 18 U.S.C. § 841; two counts of use of a firearm in violation of 18 U.S.C. § 924; two counts of firearms trafficking in violation of 18 U.S.C. § 922; two counts of cocaine base distribution in violation of 21 U.S.C. § 841; and 2 counts of cocaine base distribution near a playground in violation of 21 U.S.C. §§ 841 and 860(a).
On April 11, 2005, McFarlane pleaded not guilty on all counts charged in the April 5, 2005 indictment. On April 28, 2005, after entering into a plea agreement with the government, McFarlane withdrew his plea and pleaded guilty to one count of conspiring to distribute and possession with intent to distribute cocaine base and marijuana. Transcript of April 28, 2005 Pleading [Apr. 28 Tr.] The remaining counts against McFarlane were then dismissed on the motion of the government.
At McFarlane's sentencing, the government argued for a two-point enhancement pursuant to United States Sentencing Guideline ("Sentencing Guideline") § 2B1.1(b)(1) on account of McFarlane's alleged possession of firearms in connection with the charge to which he pleaded guilty. McFarlane maintained that he did not possess a gun and that he was eligible for a safety valve reduction.
On February 22, 23, and March 22, 2006, the undersigned conducted a Fatico hearing to determine McFarlane's alleged possession of a firearm. At the hearing, McFarlane testified that he did not possess firearms while selling drugs. See February 23, 2006 Fatico Hearing Transcript [Feb. 23 Tr.] at 63-65. The government's witnesses, Steven Gibson and Lakeevian Jones, testified about their knowledge of McFarlane's use of firearms in connection with the sale of drugs. See February 22, 2006 Fatico Hearing Transcript [Feb. 22 Tr.]; Feb. 23 Tr.; and March 22, 2006 Fatico Hearing Transcript [March 22 Tr.]. At McFarlane's April 20, 2006 sentencing, I determined that McFarlane had in fact possessed a firearm in connection with his sale of drugs. I then sentenced McFarlane to 120 months imprisonment and 5 years supervised release.
Subsequent to his sentencing, McFarlane filed a pro se appeal to the United States Court of Appeals for the Second Circuit. On November 16, 2007, the Second Circuit granted McFarlane's motion to withdraw the appeal.
On January 8, 2007, McFarlane filed the instant pro se motion pursuant to 28 U.S.C. § 2255.
When a petition is filed pro se, the court must construe the pro se litigant's motion liberally. United States v. Detrich, 940 F.2d 37, 38 (2d Cir. 1991) (citing United States v. Eatinger, 902 F.2d 1383, 1385 (9th Cir. 1990)), cert. denied, 502 U.S. 1121 (1992). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972)(holding a pro se complainant to a less stringent standard than that of a lawyer).
28 U.S.C. § 2255*fn1 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). In a § 2255 proceeding, the petitioner bears the burden of proving by a preponderance of the evidence that his sentence was imposed unlawfully. See Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000).
A petitioner cannot assert claims, constitutional or otherwise, that he failed to raise at trial, sentencing or on direct appeal "unless he can establish both cause for the procedural default and actual prejudice resulting therefrom or that he is 'actually innocent' of the crime of which he was convicted." DeJesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998)(citing Bousley v. United States, 118 S.Ct. 1604, 1611 (1998); Murray v. Carrier, 477 U.S. 478, 485, 496(1986)); see also ...