The opinion of the court was delivered by: JOSEPH GREENAWAY, District Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
Petitioner Charles Rodriguez ("Petitioner") has filed the
instant pro se motion to vacate his sentence, pursuant to
28 U.S.C § 2255 ("§ 2255"). Petitioner contends that his sentence
should be vacated for four reasons. First, Petitioner claims that
this Court erred by sentencing him under a statute that was not
charged in the indictment. Second, Petitioner claims that
Respondent (or "the Government") violated his due process rights
by conducting a sting operation targeted at Petitioner. Third,
Petitioner claims that his counsel's ineffective assistance
violated his Sixth Amendment right to counsel. Finally,
Petitioner claims that Blakely v. Washington, 542 U.S. 296
(2004), should apply to the instant case, and that based upon
Blakely, his sentence should be vacated. For the reasons set
forth below, Petitioner's motion is denied. FACTS*fn1
On July 19, 1997, a bank robbery took place at the Corestates
Bank in Woodlynne, New Jersey. This robbery was videotaped on the
bank's surveillance cameras. The tape shows Petitioner, his
brother (Joseph Rodriguez), and one or two other males entering
the bank with guns resembling assault rifles. After stealing over
$64,000, they escaped in a stolen car.
On May 23, 1998, Petitioner, his brother, and another male
entered the Commerce Bank in Moorestown, New Jersey. This robbery
also was recorded by the bank's surveillance cameras.
In August of 1998, the Federal Bureau of Investigation ("FBI")
sought to apprehend Petitioner, and solicited the assistance of
Petitioner's cousin, Fernando Flores. Flores previously had been
a police officer but had resigned from the force.*fn2 He
agreed to work with law enforcement authorities and worked
closely with them to capture Petitioner. Apparently upon Flores'
initial contact with Joseph Rodriguez, the FBI learned that the
Rodriguez brothers were interested in "doing a six figure job."
At the instruction of the FBI, Flores told Joseph about a
fictional friend who worked as a guard of an armored car. Flores
told Joseph that the armored car was scheduled to service an ATM
machine at the Walt Whitman rest stop of the New Jersey Turnpike
in Cherry Hill, and that the guard had agreed to allow them to
stage a robbery of the armored car in exchange for a portion of
The robbery was scheduled to take place on September 1, 1998.
Roughly one week before the robbery was scheduled to take place, Flores, at the
FBI's direction, instructed Joseph, and another participant, Jose
Soto, to bring their weapons to Flores' apartment to plan the
robbery. On August 29, 1998, Joseph and Soto showed up at Flores'
apartment with bags containing weapons, clothing, and other gear.
On the day of the robbery, the group (Petitioner, Joseph, Soto,
and Flores) drove two cars one was a stolen Buick and the other
was the getaway car to a neighborhood near the rest stop, where
they parked the getaway car. The four then drove in the stolen
Buick to the rest stop. Everyone except Flores was armed.
At about 9:00 a.m, the group arrived in the stolen Buick at the
rest stop. Law enforcement authorities were present in various
locations at the rest stop. As the Buick drove around the parking
lot, law enforcement apparently observed Soto grabbing a weapon
and pointing it in the direction of the FBI SWAT team, which then
opened fire. The driver (not identified in Petitioner's motion
papers) continued to drive, despite the gunfire, until a tow
truck operated by the FBI struck the car. Petitioner was inside
the Buick when he was arrested.
On March 16, 1999, the grand jury in the District of New Jersey
returned an eleven-count indictment charging Petitioner with: (1)
conspiracy to commit bank robberies and the robbery of an armored
car, in violation of 18 U.S.C. § 371 (Count 1); (2) robbery of
the Corestates Bank on July 19, 1997, in violation of
18 U.S.C. § 2113(a) (Count 2); (3) use of a firearm during the commission of
the Corestates Bank robbery, in violation of U.S.C. § 924(c)(i)
(Count 3); (4) robbery of the Commerce Bank on May 23, 1998, in
violation of 18 U.S.C. § 2113(a) (Count 4); (5) use of a firearm
during the commission of the Commerce Bank robbery, in violation
of 18 U.S.C. § 924(c)(i) (Count 5); (6) carjacking, in violation of
18 U.S.C. § 2119 (Count 6); (7) obstruction of commerce by the
attempted robbery of the Loomis armored car, in violation of
18 U.S.C § 1951(a) (Count 7); (8) use of an automatic weapon during
the attempted robbery of the Loomis armored car, in violation of
18 U.S.C. 924(c)(i) (Count 8); and (9) possession of a firearm by
a felon, in violation of 18 U.S.C. 922(g)(1) (Count 9). (Ex. A to
Resp. Br.) On March 23, 1999, Petitioner pled not guilty to all
counts, and proceeded to trial. (Docket No. 33 [Cr. No. 98-547].)
On July 9, 1999, the jury returned a verdict convicting
Petitioner on all counts. (Docket No. 85 [Cr. No. 98-547].)
On April 6, 2000, this Court sentenced Petitioner to a term of
life imprisonment. (Docket No. 123 [Cr. No. 98-547].) On April 7,
2000, Petitioner filed a pro se Notice of Appeal with the
United States District Court in the District of New Jersey.
(Docket No. 128 [Cr. No. 98-547].) On January 21, 2003, the Third
Circuit Court of Appeals affirmed Petitioner's sentence. (Docket
No. 142 [Cr. No. 98-547].) On March 24, 2003, the Supreme Court
of the United States denied Petitioner's petition for a writ of
certiorari. (Cr. No. 02-9058.)
On January 14, 2004, Petitioner filed a petition ("Petition")
to vacate, set aside, or correct his sentence, pursuant to
28 U.S.C. § 2255, and on August 26, 2004, Respondent filed its
answer. On September 28, 2004, Petitioner filed his reply.
Section 2255 allows a prisoner in custody to file a petition
for a writ of habeas corpus with the sentencing court on the
grounds that: (1) the imposed sentence violated the United States
Constitution or laws; (2) the court did not have jurisdiction;
(3) the sentence exceeded the maximum allowed by law; or (4) the sentence is subject to
collateral attack on other grounds. See 28 U.S.C. § 2255. "[A]
motion to vacate [a] sentence under 28 U.S.C. § 2255 is addressed
to the sound discretion of the district court." United States v.
Williams, 615 F.2d 585, 591 (3d Cir. 1980).
Habeas corpus does not encompass all sentencing errors because
it is not a substitute for direct appeal. See Reed v. Farley,
512 U.S. 339, 354 (1994); United States v. Addonizio,
442 U.S. 178, 184 (1979). Errors that justify reversal on direct appeal
may not necessarily be sufficient to support collateral relief.
See Addonizio, 442 U.S. at 184.
Where a prisoner fails to "raise his claim on direct review,
the writ [of habeas corpus] is available only if the [prisoner]
establishes `cause' for the waiver and shows `actual prejudice
resulting from the alleged violation.'" Reed, 512 U.S. at 354.
"To show cause, a petitioner must establish that `some external
impediment' prevented him from raising the claim," such as
interference by officials, the unavailability of evidence at the
time, or the ineffective assistance of counsel. See Wise v.
Fulcomer, 958 F.2d 30, 34 (3d Cir. 1992) (quoting McCleskey v.
Zant, 499 U.S. 467, 497 (1991)). "Prejudice exists where `errors
at trial . . . worked to [petitioner's] actual and ...