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December 14, 2005.

KEITH WOOTEN, Petitioner,

The opinion of the court was delivered by: GARRETT BROWN, District Judge


This matter comes before the Court upon the motion of pro se Petitioner, Keith Wooten ("Petitioner"), to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 and Respondent the United States of America's ("the Government") motion to dismiss the petition. Having decided the matter based on the parties' submissions and without oral argument pursuant to Federal Rule of Civil Procedure 78, and for the reasons set forth in this Memorandum Opinion, the petition is denied and dismissed with prejudice.


  On September 21, 2000, a grand jury handed up a two-count indictment against Petitioner. Count One charged Petitioner with conspiracy to distribute and possess with intent to distribute more than fifty grams of a mixture and substance containing cocaine base, in violation of 21 U.S.C. §§ 841 and 846. Count Two charged Petitioner with violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 for distribution and possession with intent to distribute more than fifty grams of cocaine base.

  The parties entered into a plea agreement on November 20, 2000. A plea hearing was held on November 22, 2000. Pursuant to the plea agreement, Petitioner plead guilty to the conspiracy charge and the Government agreed to dismiss the second count. In the plea agreement and at the hearing, Petitioner was advised that the conspiracy charge carried a statutory minimum penalty of ten years imprisonment and a maximum penalty of life imprisonment. Petitioner was also informed that determination of the ultimate sentence was one that rested within the sole discretion of the sentencing judge.

  The presentence investigation report ("PSR") was prepared by the Probation Office. The PSR indicated that Petitioner's initial base offense level was thirty-two. At sentencing, the Court adjusted the offense level to thirty-seven after determining that Petitioner qualified as a career offender under United States Sentencing Guidelines ["U.S.S.G."] § 4B1.1. The Court then reduced Petitioner's offense level by three points for early acceptance of responsibility. (Id.). Based on an adjusted offense level of thirty-four, and a criminal history category of VI, the applicable guideline range was 262 to 327 months. Petitioner was sentenced to a prison term of 262 months and five years of supervised release. Petitioner subsequently appealed his conviction and sentence to the Court of Appeals for the Third Circuit. On May 28, 2004, the Third Circuit affirmed the judgment. Petitioner did not file any subsequent appeals.

  On June 23,2005, Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255 to vacate, correct or set aside his sentence. A Notice and Order was entered on July 28, 2005, advising Petitioner of his rights under United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and directing him to inform the Court as to how he wishes to proceed with his motion. Petitioner did not file a response to the Notice, and on September 9, 2005, the Government was advised to answer within forty-five days. In the interim, Petitioner filed, and this Court granted, a deficient motion for extension of time to file a memorandum of law in support of his petition. Petitioner filed his memorandum on October 26, 2005. The Government filed a motion to dismiss on September 30, 2005, and a supplemental letter brief in support of its petition on November 7, 2005. In his petition, Petitioner makes two contentions: 1) ineffective assistance of counsel based on counsel's alleged failure to advise him of his career offender status and 2) improper reliance on his prior convictions to enhance his sentence. The Court will address each argument in turn.


  A. Standard of Review For 28 U.S.C. § 2255

  Section 2255 of Title 28, of the United States Code, permits a court to vacate, correct or set aside a sentence that:
[W]as 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. . . .
28 U.S.C. § 2255. However, "section 2255 `may not be employed to relitigate questions which were raised and considered on direct appeal.'" United States v. DeRewal, 10 F.3d 100, 105 n. 4 (3d Cir. 1993) (quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986), cert. denied, 511 U.S. 1033 (1994)). Moreover, if a petitioner has failed to raise an objection at the time of trial and has also failed to raise the issue on direct appeal, then collateral review of that claim is procedurally barred unless the petitioner is able to show "cause" excusing his procedural default and "actual prejudice" resulting from the alleged error or violation. Henry v. United States, 913 F. Supp. 334, 336 (M.D. Pa. 1996), aff'd, 96 F.3d 1435 (3d Cir. 1996); see also United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993) (holding that the "cause and prejudice" standard set forth in United States v. Frady, 456 U.S. 152 (1982), "applies to § 2255 proceedings in which a petitioner seeks relief from alleged errors in connection with his sentence that he has not directly appealed."). However, a petitioner need not demonstrate cause and prejudice when he raises a claim of ineffective assistance of counsel for the first time in a collateral attack. DeRewal, 10 F.3d at 104.

  B. Ineffective Assistance of Counsel

  Petitioner claims that he was denied effective assistance of counsel because he was not advised of the potential applicability of the career offender provision prior to his acceptance of the plea agreement. (Pet.'s June 20, 2005 Br. at 7). Petitioner further asserts that but for counsel's failure to advise him of this alleged error, he would not have plead guilty and would have proceeded to trial. (Pet.'s Oct. 25, 2005 Br. at 7).

  A claim of ineffective assistance of counsel flows from the Sixth Amendment right to counsel, which exists "in order to protect the fundamental right to a fair trial." Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) (internal citation and quotation marks omitted). In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established the standard for reviewing ineffective assistance of counsel claims. In order for a petitioner to succeed on such a claim, he must establish that: (1) his attorney's performance was objectively deficient, and (2) that such deficient performance prejudiced his defense. Id. at 687. When evaluating performance, courts must examine the entire proceedings and determine whether, in light of all the circumstances, counsel's conduct was outside the wide range of professionally competent assistance. See Kimmelmann v. Morrison, 477 U.S. 365, 386 (1986). With respect to the prejudice inquiry; whether the outcome may have been different but for counsel's error is not dispositive, rather the court must focus on whether the result of the proceeding was fundamentally unfair or unreliable. Lockhart, 506 U.S. at 369-370.

  The argument Petitioner raises in the instant motion has been squarely rejected by a number of courts, including this Court in Nwachia v. United States, 891 F. Supp. 189 (D.N.J. 1995).*fn1 In Nwachia, the petitioner argued that he was denied "effective assistance of counsel because his attorney failed to explain to petitioner before his plea of guilty that he might be classified as a career offender and be subject to enhanced penalties under the sentencing guidelines." Id. at 196 (internal quotations omitted). Relying on the persuasive reasoning set ...

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