Jason Rose, # 55913-054, Pollock, LA, petitioner (Pro Se).
Laurie Korenbaum, Assistant United States Attorney, New York, NY, for Respondent.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
Petitioner Jason Rose, proceeding pro se, was convicted after a one-month jury trial of conspiracy to distribute fifty grams or more of crack cocaine (Count One) and using and carrying a firearm in furtherance of a narcotics conspiracy (Count Two), Pursuant to 21 U.S.C. 841(h)(1)(A)(iii), the statutory mandatory minimum term for the drug conviction was ten years. However, because the Government filed a prior felony information against Rose pursuant to 21 U.S.C. 851, the statutory mandatory minimum term of imprisonment increased to twenty years. An additional sixty month consecutive term was required for the gun charge, resulting in a total sentence of 300 months.
The United States Sentencing Guidelines (the "Guidelines") were irrelevant to Rose's sentence because I imposed a non-Guidelines sentence dictated by the statutory mandatory minimums. At the sentencing, I found the quantity of crack cocaine to be 1.5 kilograms, which corresponded to offense level 38. At offense level 38, Criminal History Category IV, the Guidelines range on the drug conspiracy count alone was 324 to 405 months in custody. Converting the crack cocaine to powder cocaine using a 10-to-1 ratio would have resulted in 15 kilograms of powder cocaine and a total offense level of 34 instead of 38. These Guidelines calculations were merely a point of reference because the sentence imposed was based on statutory mandatory minimums rather than the Guidelines.
Rose appealed his conviction and sentence to the Second Circuit which issued a Mandate on October 27, 2008, affirming this Court. Rose then filed a petition for a writ of certiorari which was denied on February 23, 2009. Rose therefore had until February 23, 2010, in which to file a timely habeas motion. The instant motion was filed on August 20, 2013.
In his Habeas Motion, Rose objects to the Court's determination of drug quantity (1.5 kilograms of crack cocaine), stating:
If the fact found by the jury is used, (50g or more) plus the usage of the judge['s] 10 to I Ratio, Petitioner['s] sentence Range should be category 4 Level 26 (which correspond[s] out to be 92-115)[.] Being [al § 851 was also filed, Petitioner['s] min 5y turn into 10 y min[.] So [a] sentence of 120 months on the drug and 60 months on the gun, would have been within the bounds that the law has legally prescribed under Alleyne. 
In arguing that his Habeas Motion is timely, Rose relies on Alleyne v. United States.  According to Rose, Alleyne represents a constitutional right newly recognized by the Supreme Court which is retroactively applicable to cases on collateral review. Rose maintains that his sentence was inappropriate under Alleyne and requests that his sentence be vacated and that he be re-sentenced using a lower mandatory minimum. For the following reasons. Rose's request is DENIED.
II. LEGAL STANDARDS
A. Section 2255
Section 2255 of Title 28 of the United States Code ("section 2255") allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. Specifically, "[s]ection 2255 provides that a prisoner sentenced by a federal court may move to have that sentence vacated, set aside or corrected if he or she claims that the court, in sentencing him or her, violated the Constitution or the laws of the United States, improperly exercised jurisdiction, or sentenced him or her beyond the maximum time authorized by law." A prisoner is entitled to a hearing on a motion filed under section 2255 "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief."
A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Collateral relief under section 2255 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 ...