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 granted in part and denied in part.
Section 2255 provides, in relevant part, as follows:
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.
28 U.S.C. § 2255. The Court may dismiss a section 2255 petition without conducting a hearing if the petition and the record "conclusively show" that petitioner is not entitled to relief. 28 U.S.C. § 2255. In other cases, "[a] district court has a wide variety of tools available to it in developing the record during habeas proceedings." Pham v. United States, 317 F.3d 178,180 (2d Cir. 2003). Specifically, [i]t is within the district court's discretion to determine whether a hearing is warranted. Among the wealth of materials available to the district court at its direction are the trial record, letters, documents, exhibits, affidavits and written interrogatories. After expanding the record, the district court then decides if an evidentiary hearing also is required. Our precedent disapproves of summary dismissal of petitions where factual issues exist, but it permits a 'middle road' of deciding disputed facts on the basis of written submissions.
Id. at 184 (citations omitted). In this case, the Court has taken such a middle road, and has obtained affidavits from the prosecutor and defense counsel (Docket Nos. [#147][#148]), in addition to those submitted by Petitioner (Docket Nos. [#135][#138]).
The facts of this case were set forth in exhaustive detail in a thirty-two page decision of the United States Court of Appeals for the Second Circuit, and need not be repeated here. See, U.S. v. Gaskin, 364 F.3d 438 (2d Cir. 2004), cert. denied, 544 U.S. 990, 125 S.Ct. 1878 (2005). For purposes of the instant application, it is sufficient to note only the following facts.
On November 21, 2000, a federal grand jury in the Western District of New York returned an eight-count Indictment against Petitioner, Wayne Gaskin (hereinafter "Gaskin") and two co-defendants. Count One charged conspiracy to possess with intent to distribute, and to distribute, 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B). Count Two charged possession with intent to distribute and distribution of 100 kilograms or more of marijuana in violation of 21 U.S.C. §841(a)(1). Counts Three, Four, Five and Six charged possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). Count Seven charged Gaskin with unlawfully carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Count Eight charged the forfeiture of approximately $20,000.
As early as December 8, 2000, when a detention hearing was held, Petitioner was advised that in connection with the drug trafficking charges, he faced a maximum sentence of forty years in prison, and that if convicted of possessing a firearm in violation of 18 U.S.C. § 924(c), he would also receive a mandatory, consecutive five-year sentence of imprisonment. In Petitioner's presence the government estimated that if he were convicted of the drug and weapons charges, his overall sentence would likely be in the range of thirteen to fifteen years, and that the drug charges alone could result in a sentence of at least eight to ten years:
MR. RODRIGUEZ [Assistant United States Attorney]: Now, we are looking at 100 to 400 kilos of marijuana. Under the guidelines Judge, I calculate that he starts off at offense level 26, Mr. Gaskin does. On top of that I would submit that you would add 4 points for being a supervisor in criminal activity involving five or more persons. That brings him to level 30. Even if the Defendant is category one, at level 30 category one, he is looking at 97 to 121 months. . . . In addition to that he is looking at a 5 year mandatory consecutive under 924(c).
THE COURT: Mr. Rodriguez has represented that in terms of the sentence that Mr. Gaskin is facing, he is facing now a 40 year maximum sentence on the marijuana possession statutorily. He is facing according to Mr. Rodriguez between, under the guidelines, you anticipate that he is facing -- what guideline range did you give me?
MR. RODRIGUEZ: Judge, for Mr. Gaskin 97 to 121 months.
THE COURT: Which translates to what in years?
MR. ROTHENBERG: 8 to 10 years.
MR. RODRIGUEZ: 8 to 10, Judge.
THE COURT: 5 year minimum if convicted of the gun charge. MR. ...