The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Presently before this Court is pro se Petitioner Rico A. Welch's Motion to Vacate, Set Aside, or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255. Petitioner alleges that his conviction in this Court was unconstitutionally or unlawfully obtained. For the reasons discussed below, Petitioner's motion is denied.
On January 22, 2007, Petitioner appeared before this Court, and pled guilty to a two-count Indictment charging him with unlawful possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1). (Docket Nos. 1, 12.)
In the plea agreement, Petitioner acknowledged that: a) On May 14, 2005 . . . at his residence at 2020 Pine Avenue, Apartment #7, Niagara Falls, New York 1610 Pine Avenue in the city of Niagara Falls, New York, in the Western District of New York, [he] unlawfully, did knowingly possess a quantity of ammunition . . . .
b) At the same time and place, the defendant possessed 1.19 pounds of a mixture and substance containing marijuana, a Schedule I controlled substance. (Docket No. 12, ¶¶ 5.)
On May 23, 2007, this Court sentenced Petitioner to an 18-month term of imprisonment for his conviction on Count One of the Indictment and to an 18-month term of imprisonment for his conviction on Count Two of the Indictment, to run concurrently, and a 3-year term of supervised release on each count, to also run concurrently. (Docket Nos. 17, 20.)
On January 17, 2008, Petitioner filed the instant motion. Plaintiff's original motion was entitled a "Petition for Writ of Habeas Corpus by Person in Federal Custody, Pursuant to 'The Judiciary Act of February 5th, 1967, c 28, § 1, 14 Stat 385-384', as quoted in Fay v. Noia, 372 US 391, 441-443 (1963)." (Docket No. 21.) This Court interpreted Petitioner's motion as a Motion to Vacate, Set Aside, or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255 on May 20, 2008. (Docket No. 23.) The Government filed its response on June 30, 2008. (Docket No. 24.)
28 U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences.That section provides, in pertinent part, that:
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 ...