The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Petitioner Lakquan Lopez was convicted in 2007 before the undersigned of possession with intent to distribute cocaine base ("crack"), in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii). Now before this Court is petitioner's application to vacate, set aside, or correct that conviction pursuant to 28 U.S.C. § 2255. For the reasons set forth below, petitioner's application is denied.
On October 2, 2006, petitioner pleaded guilty before the undersigned to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii). On November 12, 2006, the government, pursuant to 21 U.S.C. § 851, filed a prior felony information, charging that petitioner had been previously convicted of a felony drug offense before Judge Gershon on September 30, 2005.
At petitioner's March 12, 2007 sentencing, I adopted the Presentence Investigation Report ("PSR") and the First and Second Addenda thereto without change. Accordingly, I found petitioner accountable for 42.84 grams of crack and her base offense level to be 30. Following a two-level upward adjustment relative to her possession of firearms and a three-level reduction for acceptance of responsibility, I determined petitioner's adjusted offense level was 29. Since petitioner's Criminal History Category ("CHC") was II, her advisory guideline range was 97 to 121 months.
Due to petitioner's prior felony drug conviction and the quantity of drugs involved in the case before me, I concluded that petitioner was subject to a statutory mandatory minimum penalty of 10 years. 21 U.S.C. § 841(b)(1)(B). Accordingly, I sentenced petitioner to the statutorily mandated minimum sentence, a term one month less than the top end of her guideline range. Subsequently, on July 17, 2007, petitioner was sentenced to a two year term of imprisonment by Judge Gershon for her violation of her probation to run concurrently with the sentence in the case before me.
On March 20, 2007, defendant appealed this Court's judgment. The government moved to dismiss defendant's appeal, in May of 2008, arguing that defendant waived her appellate rights in her plea agreement. That motion, and petitioner's direct appeal, remain pending.
On February 29, 2008 petitioner moved, pro se, for a modification of her sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 706, as amended by Amendment 711, to the United States Sentencing Guidelines.*fn1 I denied this motion on April 10, 2008, concluding that a modification of petitioner's sentence was not authorized because petitioner remained subject to the statutorily mandated minimum sentence. April 10, 2008, Sentencing Memorandum, at 4-5. Petitioner moved for reconsideration on April 28, 2008. On June 11, 2008, I denied petitioner's motion for reconsideration. June 11, 2008, Sentencing Memorandum.
However, petitioner's motion for reconsideration raised, for the first time, the argument that petitioner's prior drug felony was not final and that accordingly 21 U.S.C. § 841(b)(1)(B)'s five-year, rather than ten-year, mandatory minimum applied. In denying petitioner's motion, I noted that this argument, although not properly brought on a motion for reconsideration or under 18 U.S.C. § 3582(c)(2), could be brought as a petition under 28 U.S.C. § 2255. Id. at 6-7. I thereafter sought petitioner's consent to treat her reconsideration motion, insofar as it related the question of the applicable mandatory minimum, as a § 2255 petition, and advised petitioner of the consequences of recharacterization. Id. Petitioner consented on June 23, 2008.
On July 1, 2008, I issued an Order to Show Cause directing the government to show cause why the relief requested in petitioner's § 2255 application should not be granted. The government responded on July 23, 2008. Petitioner has filed no reply, although given leave to do so within 20 days of receipt of the government's submission.
Petitioner argues that the prior drug conviction was not final, because petitioner was still serving a term of probation, and that 21 U.S.C. § 841(b)(1)(B)'s five-year, rather than ten-year, mandatory minimum applies. Consent at 1. Petitioner also argues that doubling what she considers to be the mandatory minimum and subjecting her to an additional two-year term for violation of probation violates 18 U.S.C. § 3553. Id. Read liberally, petitioner also appears to argue ineffective assistance of counsel on the grounds that counsel failed to argue that the five-year mandatory minimum was applicable. Id. Petitioner seeks to be re-sentenced to the five-year mandatory minimum. Id. at 2. The government argues that petitioner's claims are time barred, procedurally barred, barred by her plea agreement, and substantively without merit. July 23, 2008, Gov't Opp. at 1.
A. Adjudication of § 2255 Petition While Direct Appeal is Pending
Before I address the substance of petitioner's application, however, I consider the propriety of adjudicating the motion since petitioner's direct appeal remains pending before the Second Circuit. Numerous district courts within the Second Circuit have dismissed habeas petitions without prejudice as premature based on the pendency of a direct appeal. See, e.g., Nuey v. United States, No. 06 Civ. 4367 (AKH), 2007 WL 465214, at *1 (S.D.N.Y. Feb. 9, 2007) ("'[A]bsent extraordinary circumstances,' a district court will not entertain a petition for habeas corpus pursuant to 28 U.S.C. § 2255 during the pendency of the direct appeal") (citing Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 5, Advisory Committee Notes); ...