The opinion of the court was delivered by: Irenas, Senior District Judge
Presently before the Court is Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Petitioner identifies multiple grounds for granting his motion, but the "essence of the motion" he maintains, is that he was denied his Sixth Amendment right to effective assistance of counsel "at every stage of the case" in violation of Strickland v. Washington, 466 U.S. 668 (1984). (Petitioner's Memorandum in Support of Motion ("Pet. Mem.") at 1) He further alleges that any grounds for granting Petitioner's § 2255 motion that were not previously raised "are the fault of counsel." (Petitioner's Motion ("Pet. Motion") at 4) For the reasons set forth below, Petitioner's application will be denied.
Petitioner Arthur D'Amario was convicted of one count of threatening a federal judge in violation of 18 U.S.C. § 115(a)(1)(B) after a jury trial before this Court. The case arose out of Petitioner's frustration over sentencing calculations in connection with his earlier state and federal gun convictions.
While on probation for a prior state felony conviction in 1999, Petitioner was found in possession of a handgun and ammunition. As a result, Petitioner was indicted on a felon-in-possession charge by a Rhode Island federal grand jury, found guilty at trial, and sentenced by District Court Judge Joseph DiClerico*fn1 to 18 months in federal prison. Assistant United States Attorney Stephanie Browne represented the government in the federal case.
After the federal sentencing, Petitioner was sentenced by Rhode Island state court judge to 386 days in state prison for violating the terms of his state parole. A judgment for time served was credited for the full 386 days and Petitioner was transferred to federal custody to serve his federal sentence. Although it appears that the state and federal sentences were intended to run concurrently, the federal Bureau of Prisons ("BOP") could not credit Petitioner with time spent in custody because that time had been already credited against his state parole violation sentence. See 18 U.S.C. § 3585(b) ("A defendant shall be given credit toward a service of term of imprisonment for any time he has spent in official detention prior to the date sentence commences . . . that has not been credited against another sentence.")
While serving his felon-in-possession sentence at the Federal Correctional Institution at Fort Dix, New Jersey ("FCI Ft. Dix"), D'Amario mailed a letter to Edward Roy, Esq., his attorney in both the Rhode Island federal and state cases. In the letter D'Amario expressed anger over the sentence credit computation:
If they make me work one more day, and continue to fuck up my sentence computation, I will seek revenge on the day of my inevitable discharge against the conspirators. As soon as I get off the bus in Providence next month or next year, I will kill the judges who directed the state police to frame me with those nursery rhymes. I may charge after one and break his neck with my bare hands, or I might douse myself with gasoline and light the match next to a judge, or I may get a gun and shoot them all . . . .
As I said, you must understand how sick I am of losing, and that I will not accept this latest conspiracy. The co-conspirators are:
3. [District Court Judge] DiClerico
So the way we left it is that nobody had better push me or I'll explode. 'Leave me the fuck alone!' I said, or I'll kill somebody. I also said that I will not do this time and plan to beat the judges however I can even if it means hanging myself . . . .
But they have to let me out eventually. I've told them where we're at. If they don't drop these terror tactics immediately, I'm dedicated to killing R.I. judges when I'm out. I'll put the conspirators on the front page . . . . I dare anybody to push me. You can accept all they've done to me in this hoax case. I won't. If I'm in S.H.U. when this arrives, I expect you to call these  and demand my release. They have no authority over me anymore. Arthur.
On December 4, 2001, a jury found Petitioner guilty of threatening to assault and murder District Court Judge DiClerico. Petitioner was represented by Assistant Federal Public Defenders Lori M. Koch, Esq., and Chris O'Malley, Esq., at trial.
Ms. Koch was Petitioner's counsel at sentencing. In an attempt to compensate for the sentence credit computation in the earlier gun possession sentences,*fn3 this Court granted Petitioner a downward departure, sentencing him to 27 months' imprisonment. However, the Third Circuit vacated the sentence and remanded to this Court for re-sentencing within the applicable Sentencing Guidelines range. See U.S. v. D'Amario, 350 F.3d 348 (3d Cir. 2003). Petitioner, represented by different counsel, was re-sentenced on April 22, 2004, to 30 months' imprisonment.*fn4
Although Petitioner timely filed an appeal, he later withdrew his appeal for reasons not apparent in the record. He filed this Section 2255 motion on May 10, 2004.
Section 2255 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 collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255 (2000); see also Rules Governing § 2255 Cases, Rule 1(1). Thus, Petitioner is entitled to relief only if he can establish that he is in custody in violation of federal law or the Constitution.
A district court is given discretion in determining whether to hold an evidentiary hearing on a habeas petition under Section 2255. See Gov't of the V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In exercising that discretion, the court must first determine whether the petitioner's claims, if proven, would entitle him to relief, and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3d Cir. 1991). Accordingly, a district court may summarily dismiss a motion brought under Section 2255 without a hearing where the "motion, files, and records, 'show conclusively that the movant is not entitled to relief.'" U.S. v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (quoting U.S. v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)); Forte, 865 F.2d at 62.
Petitioner asserts that he was provided ineffective assistance of counsel in violation of his Sixth Amendment rights. He maintains that his counsel: (1) did not object to alleged perjured testimony at trial and failed to prevent introduction of evidence protected by attorney -- client and psychotherapist -- patient privilege; (2) prevented Petitioner from testifying on his own behalf and erroneously informed the Court that he waived his right to testify; (3) failed to impeach government witnesses during cross-examination; (4) failed to pursue discovery and interview several potential witnesses; (5) failed to present evidence at sentencing that would have led to a lighter sentence; (6) did not assert defenses of duress and mistake / ignorance of law at trial or sentencing; and (7) failed to protest the government delaying Petitioner's indictment for eleven months.
In addition to ineffective assistance of counsel, Petitioner asserts that he is entitled to relief because (1) his conviction violates the Double Jeopardy Clause of the Fifth Amendment; (2) he was denied his right to self-representation; (3) the government destroyed and / or failed to produce evidence; (4) the Court improperly made factual determinations at sentencing without a hearing or jury determination; and (5) the communication element of 18 U.S.C. § 115(a)(1)(B) was not proven. Petitioner further asserts that "better counsel would have raised all grounds in 2001." (Pet. Motion at 5)
For the reasons outlined below, the Court finds that the evidence in the record conclusively demonstrates that Petitioner is not entitled to the relief sought. Accordingly, Petitioner's application will be denied without an evidentiary hearing.*fn5
The Supreme Court has long recognized that the Sixth Amendment right to counsel exists in order to protect a defendant's fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684-85 (1984). This right to counsel includes within it the right to effective assistance of counsel. Id. at 686; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In Strickland, the Court held that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper ...