The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Now before the Court is the pro se petitioner' s application to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below , the application is denied.
Section 2255 provides, in relevant part, as follow s: 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 w as imposed in violation of the Constitution or law s of the United States, or that the court w as w ithout jurisdiction to impose such sentence, or that the sentence w as in excess of the maximum authorized by law , or is otherw ise subject to collateral attack, may move the court w hich imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255. The Court may dismiss a section 2255 petition w ithout conducting a hearing if the petition and the record " conclusively show " that petitioner is not entitled to relief. 28 U.S.C. § 2255. As w ill be seen below , Petitioner' s arguments and submissions do not merit an evidentiary hearing.
For purposes of the instant application, it is sufficient to note the follow ing facts. The Court first turns its attention to the circumstances leading to Petitioner' s September 15, 2004 plea to, and his January 24, 2005 sentence for, the crime of possession w ith intent to distribute cocaine base, w hich plea and sentence are the subjects of this petition.
On December 4, 1987, Petitioner James Sturgis (" Petitioner" ) w as indicted by a Grand Jury in Monroe County, New York, Indictment 886/87, for the crime of Criminal Possession of a Controlled Substance in the Third Degree, in violation of New York Penal Law (" Penal Law " ) § 220.16(1), w hich provides, in relevant part: " A person is guilty of criminal possession of a controlled substance in the third degree w hen he know ingly and unlaw fully possesses . . . a narcotic drug w ith intent to sell it." In that regard, the indictment alleged that on or about October 16, 1987, Petitioner possessed heroin w ith the intention of selling it.*fn1
On March 10, 1988, Petitioner w as indicted by a Grand Jury in Monroe County, New York, Indictment 182/88, for the crime of Criminal Possession of a Controlled Substance in the Third Degree, in violation of Penal Law § 220.16(1) for possessing, w ith intent to sell, cocaine and heroin. In that regard, the indictment alleged that on or about December 2, 1987, Petitioner possessed cocaine and heroin w ith the intention of selling the same.*fn2
On June 23, 1988, Petitioner pled guilty to Attempted Criminal Possession of Controlled Substance in the Third Degree, in satisfaction of Indictment 886/87. The same day, Petitioner also pled guilty to Attempted Criminal Possession of a Controlled Substance in the Third Degree, in satisfaction of Indictment 182/88. On September 8, 1988, Petitioner w as sentenced as a second felony offender to an indeterminate sentence of imprisonment of three-to-six years on each conviction, w ith the sentences to run concurrently.
On January 22, 1991, Petitioner w as convicted, upon a plea of guilty, of Conspiracy to Distribute Heroin, a felony. He w as subsequently sentenced to a term of imprisonment of 24 months.
In addition, Petitioner has numerous other convictions, including convictions for attempted possession of a controlled substance, operating a vehicle w hile license suspended, criminal possession of a controlled substance in the seventh degree, promoting prison contraband, criminal possession of a w eapon in the third degree, and aggravated unlicensed operation of a motor vehicle, all of w hich pre-date the instant offense of conviction.
Turning now to the subject offense, on August 11, 2004, Petitioner w as stopped by police in Brighton, New York, for driving w ithout a seatbelt. Police arrested Petitioner after discovering that he w as driving w ith a suspended license. Subsequently, police discovered 45 baggies of crack cocaine in Petitioner' s car, having an aggregate w eight of 6.530 grams, and over $800 in cash. Petitioner subsequently gave a statement to police, in w hich he admitted that he possessed the crack cocaine w ith the intent to distribute it. On September 15, 2004, in the United States District Court for the Western District of New York, Petitioner w aived indictment and pled guilty before the Honorable Michael A Telesca, United States District Judge, pursuant to a w ritten plea agreement, to a one-count information charging him w ith possession w ith intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), for w hich the maximum statutory sentence w as thirty years. Specifically, Petitioner admitted that on or about August 11, 2004, he know ingly, intentionally, and unlaw fully possessed 45 plastic bags of cocaine base, w ith the intent to distribute them in the Western District of New York. (Plea Agreement at 4). It is notable that, as part if the plea agreement, Petitioner was allowed to plead to an information with an unspecified drug quantity. Otherwise, based on the weight of the cocaine base (6.53 grams), and pursuant to 21 U.S.C. § 841(b)(1)(B), Petitioner would have been subject to a mandatory minimum term of imprisonment of ten years and a maximum of life imprisonment.
During his plea, Petitioner stated that he had review ed the plea agreement w ith his attorney, Assistant United States Public Defender Roxanne Mendez-Johnson (" Mendez-Johnson" ), and that Mendez-Johnson had explained the agreement to him. (Plea Minutes at 7). Petitioner further stated that no one had " threatened or forced" him to enter into the plea agreement. (Id.). Judge Telesca found, based on Petitioner' s answ ers to questions put to him by the Court, that Petitioner w as " fully competent and capable of entering an informed plea," and that Petitioner w as " aw are of the nature of the charges and the consequences of his plea of guilty." (Id. at 9). During the plea allocution, Petitioner also agreed that he possessed all 45 bags of cocaine base w ith the intent of distributing them:
THE COURT: I' m going to ask the United States Attorney to give me a summary of the evidence that they have against you. Evidence that they w ould introduce if there w ere a trial in this case. I' ll ask you to listen carefully, because after he gives me the summary I' ll ask you if w hat he states is correct. May I hear from the Government?
MR. TAFFE: Yes , your Honor. If the matter proceeded to trial, the evidence w ould show on or about August 11th of this year w ithin the Western District of New York in Brighton the Defendant w as found w ith 45 plastic bags of cocaine base. The Defendant understands that he possessed it w ith the intent to transfer or ...