The opinion of the court was delivered by: Lifland, District Judge
On August 3, 2004, Petitioner filed a motion for relief pursuant to 28 U.S.C. § 2255 based on four claims: (1) his sentencing under the United States Sentencing Guidelines violated the Sixth Amendment; (2) his counsel was ineffective because he had the Petitioner waive the Statute of Limitations; (3) there was no jurisdiction to prosecute him under the wire fraud statute (18 U.S.C. § 1343); and (4) this Court should apply a sentence credit to the sentence he is currently serving based for alleged errors in sentences he served for committing unrelated federal crimes twenty-five years ago.
Petitioner's Sixth Amendment Claim must be denied because the judgment in his case became final before the United States Supreme Court decided United States v. Booker, and that decision is not retroactive. Lloyd v. United States, 407 F.3d 608, 616 (3d Cir. 2005).
Petitioner's judgment became final on August 18, 2003, ninety days after the Third Circuit Court of Appeals refused to review Petitioner's conviction en banc, when his time to petition the Supreme Court for certiorari expired. See United States v. Davies, 394 F.3d 182, 186. n2 (3d Cir. 2005) (where a defendant does not file a certiorari petition, the judgment of conviction becomes final when the time for seeking certiorari expires.) United States v. Booker was decided on January 12, 2005.*fn1 Therefore, Booker does not apply to the Petitioner's case. For this reason, Petitioner's Sixth Amendment Claim is denied.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Petitioner's ineffective assistance of counsel claim will be denied because Petitioner was not prejudiced by the advice about which he now complains. Petitioner admits that the two counts of the Indictment to which he plead guilty would not have been time-barred even if he had not agreed to waive the statute of limitations.
To demonstrate that his counsel was ineffective, a petitioner "'must [first] show that counsel's representation fell below an objective standard of reasonableness.'" United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002) (quoting Strickland v. Washington, 466 U.S. at 687-88).
Strickland further explained that a petitioner must also show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. At 694. That is, a petitioner must "affirmatively prove prejudice." Id. at 693. Therefore, even if counsel's conduct was unreasonable, it "does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691.
Here, Petitioner has failed to show prejudice. Petitioner waived the statute of limitations and plead guilty to Counts Three and Five of the Indictment. Neither Count Three nor Count Five would have been time-barred even if Petitioner had not agreed to the waiver about which he now complains. Thus, Petitioner cannot establish any prejudice resulting from his decision because he did not plead guilty to any of the tolled counts.
Count Three charged a violation of 18 U.S.C. §1343 based on conduct occurring on or about March 6, 1995. Count Five charged a violation of 18 U.S.C. § 371 based on conduct occurring from September 1993 through at least March 1995. When the Indictment was returned on February 4, 2000, neither Count Three not Count Five was barred by the five-year statute of limitations governing the relevant crimes charged.
Indeed, Petitioner admits that the two counts of the Indictment to which he plead guilty would not have been time-barred even without his waiver (Pet. Br. P. 27).
Accordingly, Petitioner's claim that his counsel rendered ineffective assistance by advising him to waive the statute of limitations is denied. Petitioner suffered no ...