The opinion of the court was delivered by: Matsumoto, United States District Judge:
On January 28, 2008, Jerome Martin ("Martin"), proceeding pro se,*fn1 filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence based on the alleged ineffective assistance of his former counsel, Donald duBoulay, Esq. ("duBoulay"). Martin moved to amend his petition on October 20, 2008, on August 16, 2010, and again on October 25, 2011. Martin also moved for expansion of the record, an evidentiary hearing, and the appointment of counsel. For the reasons set forth herein, Martin's motions to amend are granted, his motion for habeas corpus relief is dismissed, and his remaining motions for expansion of the record, an evidentiary hearing, and the appointment of counsel are denied.
I.Martin's Conviction and Sentence
The charges against Martin stemmed from his activities as one of the leaders of a violent narcotics distribution organization that was based in Brooklyn and operated in several other locations on the East Coast. (Case No. 03-CR-795 (S-2)(DGT), Presentence Investigation Report, dated 11/17/2006 ("PSR") ¶ 5.)*fn2 Between approximately January 1994 and August 2004, Martin managed the organization's cocaine distribution in Brooklyn and Rhode Island, and assisted in the distribution of crack cocaine to other areas where the organization sold narcotics. (Id. ¶¶ 5, 40.) Members of the organization engaged in acts of violence related to their narcotics distribution, including assault, kidnapping, murder, attempted murder, and intimidation of witnesses. (Id. ¶ 5.)
On December 16, 2005, Martin was arraigned in the District Court for the Eastern District of New York pursuant to a thirteen-count second superseding indictment. (Id. ¶ 40; see Case No. 03-CR-795(S-2)(DGT), ECF No. 202, Arraignment as to Jerome Martin, dated 12/16/2005; Case No. 03-CR-795(S-2)(DGT), ECF No. 153, Sealed Superseding Indictment ("Ind't"); Case No. 03-CR-795(S-2)(DGT), ECF No. 201, Unsealing Order, dated 12/27/2005.) On July 7, 2006, the government filed a Prior Felony Information pursuant to 21 U.S.C. § 851, charging that on July 8, 1998, Martin had been convicted in South Carolina of a felony drug offense, specifically, conspiracy to violate South Carolina narcotics and controlled substances laws, in violation of the Code of Laws of South Carolina § 44-53-370. (Case No. 03-CR-795(S-2)(DGT), ECF No. 263, Prior Felony Information, filed 7/7/2006, at 1.)
On July 10, 2006, Martin pled guilty, pursuant to a plea agreement, to distribution and possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(b)(1)(A)(iii). (See Case No. 03-CR-795 (S-2)(DGT), ECF No. 265, Minute Entry dated 7/10/2006; Case No. 03-CR-795 (S-2)(DGT), ECF No. 295, Transcript of Pleadings as to Jerome Martin held on 7/10/2006 ("Plea Tr.") at 16-18; Case No. 03-CR-795 (S-2)(DGT), Plea Agreement ("Plea Agmt.") ¶ 1; Case No. 03-CR-795 (S-2)(DGT), ECF No. 153, Ind't ¶ 48.) In his plea agreement, Martin stipulated to the U.S. Sentencing Guidelines Manual ("Guidelines" or "U.S.S.G.") calculation, which estimated that his adjusted offense level was 42, and to the facts supporting that calculation. (Plea Agmt. ¶ 2.) Further, Martin and the government agreed that if Martin pled guilty by a certain date and if certain covered defendants also pled guilty, Martin's offense level would be reduced to 40, which carried a range of imprisonment of 360 months to life, assuming that Martin's Criminal History Category was VI. (Id. ¶ 2.) Martin agreed "not to file an appeal or otherwise challenge the conviction or sentence, including by petition pursuant to 28 U.S.C. § 2255, in the event that the Court imposes a term of imprisonment of life or below." (Id. ¶ 4.) Martin also stipulated in his plea agreement that he had a prior conviction for a felony drug offense and that his sentence would be calculated based on a drug quantity and type of at least 1.5 kilograms of cocaine base. (Id. ¶ 2.)
During Martin's plea hearing on July 10, 2006, the court placed Martin under oath and verified his competence to plead guilty. (See Plea Tr. at 4-5.) The court showed Martin the plea agreement and confirmed that Martin had read it, discussed it with counsel, and signed it. (See id. at 10-11.)
The prosecutor then reviewed the penalties and advisory Guidelines calculations that would apply to Martin pursuant to his guilty plea. In particular, the prosecutor noted that because of the Prior Felony Information filed by the government, the minimum term of imprisonment was 20 years. (Id. at 11-12.) The prosecutor further stated that, pursuant to the plea agreement, Martin agreed not to appeal or challenge his sentence in the event the court imposed a term of imprisonment of life or below. (Id. at 13.) Judge Trager confirmed that Martin understood that this wavier of his rights to challenge his sentence "would apply essentially to any sentence." (Id. at 14.)
Next, the prosecutor noted during the plea hearing that Martin stipulated in the plea agreement that he had a prior conviction for a felony drug offense, as stated in the Prior Felony Information, and that his sentence would be calculated based on a quantity of 1.5 kilograms of cocaine base. (Id. at 14-15.) When asked by Judge Trager if the prosecutor's statement was correct, Martin answered, "Yes, sir." (Id. at 15.) Further, the prosecutor stated that if the case were to proceed to trial, "the government would prove the defendant conspired, agreed with others, to distribute crack cocaine, cocaine base in an amount exceeding 50 grams, in fact an amount exceeding 1.5 kilos . . . ." (Id. at 16.) The court confirmed with Martin that the prosecutor's statement was correct. (See id. at 16-17.) At the conclusion of the colloquy, the court accepted Martin's guilty plea. (Id. at 18.)
Prior to sentencing, Martin's court-appointed counsel, Donald duBoulay, Esq. ("duBoulay") submitted a letter to the court, requesting a downward departure from the advisory Guidelines range because the offense conduct allegedly "include[d] convictions [in Rhode Island and South Carolina] for which [Martin had] already served a sentence (and which [were] used to compute his base offense level)." (Case No. 03-CR-795(S-2)(DGT), ECF No. 297, Letter from Donald D. duBoulay, Esq. to The Honorable David G. Trager, dated 4/17/2007 ("Sentencing Mem.") at 4.) Further, at the sentencing hearing on April 18, 2007, duBoulay requested that Martin be sentenced only to the mandatory minimum of 20 years' imprisonment and that Martin receive credit against his federal sentence for the 30 months' imprisonment he had already served for the state felony drug offense that was the basis for the Prior Felony Information. (Case No. 03-CR-795(S-2)(DGT), Transcript of Sentencing as to Jerome Martin held on 4/18/2007 ("Sentencing Tr.") at 5, 13, 20.) The court imposed the mandatory minimum sentence of 240 months, but declined to give Martin credit for his prior discharged state sentences. (Id. at 18-20.)
II.Martin's Pending Motions
On January 28, 2008, Martin filed a motion for habeas corpus relief, pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel by duBoulay during and after sentencing. (Case No. 08-CV-452, ECF No. 1, Petition ("Pet.") at 4-5.)*fn3 In particular, Martin faults duBoulay for failing to challenge or appeal (i) the court's refusal to credit Martin's discharged terms of state imprisonment in Rhode Island and South Carolina toward his federal sentence, (id. at 10); and (ii) the court's use of Martin's prior conviction in South Carolina for a drug offense as the basis for a sentencing enhancement, (id. at 14).
By motion filed on October 20, 2008, Martin sought to amend his claims. In his first motion to amend, Martin asserts that duBoulay was also ineffective for failing to challenge the documents on which the court relied in concluding that Martin's prior drug offense conviction in South Carolina was for a felony and that a sentence enhancement was therefore warranted. (Case No. 08-CV-452, ECF No. 7, Motion to Amend Petitioner's § 2255 Petition Pursuant to Federal Rules of Civil Procedure Rule 15(C)(1)(B), filed 10/20/2008 ("Pet'r First Mot. to Amend") at 3.)
On October 20, 2008, the government opposed Martin's petition. (See Case No. 08-CV-452, ECF No. 5, Memorandum in Opposition, dated 10/20/2008 ("Gov't Opp.").) Martin filed a traverse on November 3, 2008. (See Case No. 08-CV-452, ECF No. 8, Petitioner Martin's Traverse, filed 11/3/2008 ("Pet'r Traverse").) On August 10, 2009, pursuant to a court order, duBoulay filed an affidavit responding to Martin's allegations of ineffective assistance of counsel. (See Case No. 08-CV-452, ECF No. 11, Affidavit/Affirmation of Donald D. duBoulay, Esq., dated 8/10/2009 ("duBoulay Aff."); see also Case No. 08-CV-452, ECF No. 9, Order dated 7/1/2009.)
On July 14, 2009, Martin filed a motion to expand the record, pursuant to Rule 7(a) of the Rules Governing 2255 Proceedings for the United States District Courts ("Rules Governing 2255 Proceedings"). (See Case No. 08-CV-452, ECF No. 10, filed 7/14/2009 ("Pet'r Mot. to Expand").) The government opposed Martin's motion to expand the record on April 18, 2010. (Case No. 08-CV-452, ECF No. 13, Letter to the Honorable Judge Trager, dated 4/18/2010.) Martin responded by letter dated April 25, 2010. (Case No. 08-CV-452, ECF No. 15, Letter filed 4/30/10 from Jerome Martin to Judge Trager.)
On August 16, 2010, Martin filed a second motion to amend his petition, asserting that he is entitled to be resentenced in light of the Fair Sentencing Act of 2010, pursuant to which the penalties for offenses involving crack cocaine were amended. (See Case No. 08-CV-452, ECF No. 16, Motion to Amend Petitioner's § 2255 Petition Pursuant to Federal Rules of Civil Procedure, Rule 15(C)(2)(D), filed 8/16/2010 ("Pet'r Second Mot. to Amend").) The government opposed the motion by letter dated August 18, 2010. (See Case No. 08-CV-452, ECF No. 17, Memorandum in Opposition, dated 8/18/2010.)
On September 6, 2011, Martin filed a motion for appointment of counsel, pursuant to Rule 8(c) of the Rules Governing Section 2255 Proceedings, seeking an evidentiary hearing and counsel to be appointed therefor.*fn4 (See Case No. 08-CV-452, ECF No. 22, Motion for Appointment of Counsel, filed 9/6/2011 ("Pet'r Mot. to Appoint Counsel").)
On October 25, 2011, Martin filed a third motion to amend his petition, arguing once again that the document on which the court relied in enhancing his sentence was ambiguous, and thus insufficient to prove that his prior conviction was for a felony. (Case No. 08-CV-452, ECF No. 24, Motion to Amend, Petitioner's § 2255 Petition Pursuant to Federal Rules of Civil Procedure Rule 15(C)(1)(B), filed 10/25/2011 ("Pet'r Third Mot. to Amend") at 3-4.) In addition, Martin's third motion to amend claims that he is entitled to relief based on the district court's alleged failure to ask Martin whether he was previously convicted as alleged in the Prior Felony Information, and failure to warn Martin of the consequences of not challenging the Prior Felony Information, as required by 21 U.S.C. § 851(b). (Id. at 4-5.)
I.Motion Pursuant to 28 U.S.C. § 2255
A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence on the basis "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(a). Collateral relief from a final criminal judgment 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.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
A motion pursuant to Section 2255 must be filed in the district court "which imposed the sentence" being challenged.
28 U.S.C. § 2255(a); Ndoromo v. Holder, No. 09-CV-5686, 2010 U.S. Dist. LEXIS 4631, at *2 (E.D.N.Y. Jan. 20, 2010).*fn5 Further, Section 2255 "may not be used as a substitute for a direct appeal." Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 165 (1982)). "[A] claim 'may not be presented in a habeas petition where the petitioner failed to properly raise the claim on direct review.'" Mora v. United States, No. 08-CV-3826, 2010 U.S. Dist. LEXIS 64838, at *4 (S.D.N.Y. June 29, 2010) (dismissing as procedurally barred petitioner's claims that, inter alia, his sentence was calculated incorrectly and his federal and state sentences should run concurrently because petitioner did not raise those claims on direct review) (quoting Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007)). An exception to this general rule is that "a petitioner may bring an ineffective assistance of counsel claim [in a motion pursuant to 28 U.S.C. § 2255] whether or not the petitioner could have raised the claim on direct appeal." Mui v. United States, 614 F.3d 50, 54 (2d Cir. 2010) (citing Massaro v. United States, 538 U.S. 500, 509 (2003)).
i.Timeliness of Martin's January 28, 2008 Motion Pursuant to 28 U.S.C. § 2255
A motion pursuant to 28 U.S.C. § 2255 must be filed within one year of the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). If the defendant does not appeal his conviction, the judgment of conviction becomes final the day after the period for appeal expires. See Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000). At the time of Martin's sentencing, an appeal in a criminal case must have been filed within ten business days of the entry of judgment. Fed. R. App. P. 4(b)(1)(a) (2006).*fn6 Thus, where the defendant does not appeal his conviction, the judgment of conviction becomes final eleven business days after the entry of judgment.
Here, the judgment of conviction was entered on June 6, 2007. (See Case No. 03-CR-795, ECF No. 313, Judgment as to Jerome Martin, dated 6/6/2007.) Martin did not file a direct appeal. Thus, the statute of limitations period in effect at the time began to run on June 21, 2007, the date on which the judgment of conviction became final. Because Martin filed the instant motion on January 28, 2008, well within the one-year statute of limitations, it is timely.
ii.Timeliness of Martin's Motions to Amend the Petition
On October 28, 2008, after the one-year limitations period had expired, Martin filed his first motion to amend the petition. On August 16, 2010 and October 25, 2011, respectively, Martin filed second and third motions to amend. Any claim raised for the first time in an amended Section 2255 motion filed outside the limitations period must "relate back" to the initial motion in order to be timely under Federal Rule of Civil Procedure 15. Hewitt v. Artuz, No. 99-CV-5021, 2008 U.S. Dist. LEXIS 59547, at *13-14 (E.D.N.Y. Aug. 4, 2008); Slayton v. Am. Express Co., 460 F.3d 215, 228 (2d Cir. 2006) (proposed amendment relates back only when it arises out of the same factual conduct forming the basis of the original pleading). To relate back, the amendment must "assert a claim or defense that arose out of the conduct, transaction, or occurrence set out -- or attempted to be set out -- in the original pleading." Fed. ...