The opinion of the court was delivered by: Simandle, U.S. District Judge
This matter comes before the Court upon Respondent's motion to dismiss Petitioner Javon Jennings' § 2255 habeas petition. In this petition, Petitioner seeks to vacate, set aside, or correct his sentence following pleading guilty to a two count information charging a violation of 18 U.S.C. 1951 and a violation of 18 U.S.C. 924(c). Petitioner claims that his sentence violated the Supreme Court's holding in Blakely v. Washington, and that he was denied the effective assistance of counsel in violation of the Sixth Amendment. For the following reasons, the government's motion will be granted and Jennings' petition for a writ of habeas corpus will be dismissed.
On November 20, 2000, police responded to an armed robbery at Sally's Salon in Cherry Hill, New Jersey. (Presentence Investigation Report at 6.) Irvin Juan Martinez later confessed to the armed robbery of the Salon and to stealing the vehicle used in the robbery. He told police that Jennings remained in the car as a lookout while he committed the armed robbery. Jennings later admitted to riding in the stolen vehicle with Martinez to the Salon and waiting in the vehicle while Martinez committed the robbery. (Id. at 7.)
On December 2, 2000, an attempted armed robbery occurred at Delta Gas station in Runnemede, New Jersey. (Id.) After subsequent police interviews, Jennings admitted driving to the Delta Gas Station in another vehicle stolen by Martinez, and remaining in the vehicle while Martinez attempted to rob the attendant with a semiautomatic pistol. (Id. at 8.) Jennings noted that he "kept a sawed-off shotgun in the car with him during this robbery attempt." (Id.)
Jennings also admitted to participating in the robbery of the Gulf Gas Station in Collingswood, New Jersey on December 9, 2000 and the robbery of the 8/12 Mini Market in Westville, New Jersey on December 16, 2000. (Id. at 8, 10.) During the robbery of the Gulf Gas Station, a gas attendant was shot in the left leg. Martinez later admitted that he shot the attendant when he failed to comply with his demands. (Id.) In both robberies, Jennings was armed with a sawed-off shot gun. (Id. at 9, 11.)
On December 20, 2000, an armed robbery occurred at the Gas Mart in Haddon Township, New Jersey. Based on the license plate number provided by the gas station attendant, Camden police identified the vehicle on December 21, 2000 and attempted to stop it. However, Jennings, who was driving the vehicle, did not stop and attempted to escape, until ultimately crashing into a telephone pole. (Id. at 12.) Jennings and Martinez admitted to participating in the Gas Mart robbery. (Id. at 13.)
On April 1, 2002, Petitioner waived his right to an indictment (Pl. Hr'g Tr., April 1, 2002 at 4:23 to 5:9) and entered a guilty plea to a two count information charging Jennings with a "Hobbs Act robbery, on December 9, 2000, in violation of 18 U.S.C. § 1951" and with "using and carrying a sawed-off shotgun during and in relation to a crime of violence, on December 20, 2000, in violation of 18 U.S.C. § 924(c)." (Plea Agreement, Resp't's Answer Ex. A.) At the plea hearing, Jennings was represented by Edward Crisonino, Esq. (Pl. Hr'g Tr. at 2:15-16.) During the hearing, the undersigned directed specific questions to Jennings under oath to determine whether he understood the charges against him, the potential maximum sentences, the Constitutional rights forfeited by pleading guilty, and that by pleading guilty he would be bound to that admission. (Id. at 12:13 to 18:15, 23:19 to 32:12.) Jennings affirmed that all stipulations attached to his plea agreement were true. (Id. at 43:13-15.) During the hearing, Jennings stated that he was guilty of Counts One and Two. (Id. at 50:15-17, 51:3-4.) His detailed testimony provided a factual basis for each essential element of Counts One and Two. (Id. at 51:11 to 54:21.) This Court then concluded that there was a factual basis for Counts One and Two and accepted Jennings' plea of guilty. (Id. at 51:11 to 54:21, 62:2-3.)
Pursuant to the plea agreement, the government decided not to pursue criminal charges against Jennings related to (1) armed robbery at Sally's salon, (2) attempted armed robbery of Delta Gas station, (3) armed robbery of Gulf Gas Station, (4) armed robbery of 8/12 Mini Market, (5) armed robbery of Gas Mart, and (6) the use of a firearm during and in relation to each of these robberies. (Plea Agreement, Resp't's Answer Ex. A.) The plea agreement also stated that the sentence to be imposed "is within the sole discretion of the sentencing judge, subject to the provisions of the Sentencing Reform Act, 18 U.S.C. §§ 3551-3742 and the Sentencing Guidelines." (Id.)
On July 19, 2002, this Court sentenced Petitioner to a term of incarceration of 108 months for Count One and 120 months for Count Two, to be served consecutively. (Sentencing Tr., July 19, 2002, at 24: 14-19.) The Petitioner was also sentenced to a total of five years of supervised release upon release from prison. (Id. at 24:21-23.) Additionally, Jennings was ordered to make restitution in the total amount of $21,107.17. (Id. at 26:6-7.) The sentence imposed was within the U.S. Sentencing Guidelines range, as agreed by Jennings and the Government in the plea agreement. (Resp't's Answer ¶ 5.)
Following sentence, Petitioner filed a timely appeal, arguing that the District Court had improperly calculated the offense level. (Resp't's Answer ¶ 6.) Petitioner did not claim on appeal that the sentencing court relied upon erroneous information in determining that the facts of the case did not warrant a downward departure pursuant to U.S.S.G. § 5K2.12. On May 23, 2003, the Court of Appeals affirmed the judgment of conviction and sentence, and issued its mandate on June 16, 2003. (Id.)
On August 30, 2004, Jennings timely petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, requesting that this Court vacate, set aside or correct the sentence for Counts One and Two.*fn1 [Docket Item No. 1.] On September 20, 2004, the Court entered an order advising Petitioner of his rights under United States v. Miller, [Docket Item No. 2] and on February 15, 2005, the Court entered an order to answer [Docket Item No. 3]. The government filed its answer on April 4, 2005. [Docket Item No. 4.]
A habeas petitioner who seeks to challenge the legality of his sentence must file a habeas corpus petition under 28 U.S.C. § 2255 with the sentencing court. In this case, Jennings properly petitions this Court pursuant to 28 U.S.C. § 2255, since he attacks the legality of the sentence imposed by this Court.
Thus, this Court has jurisdiction to hear Jennings' petition.
Petitioner first claims that his sentence violates the Supreme Court's holding in Blakely v. Washington. Secondly, the Petitioner claims he was denied effective assistance of counsel because counsel did not present to the Court sufficient facts regarding the Petitioner's claim of coercion and duress and failed to move for a downward departure under U.S.S.G. § 5K2.12. (Pet. Br. at 5.) The Petition will be denied because (1) the Blakely decision does not apply retroactively to petitioners whose federal convictions were final before the Supreme Court's decision in United States v. Booker, and (2) the two prongs of the Strickland v. Washington test necessary to establish ineffective counsel are not satisfied. 466 U.S. 668 (1984).
A. The Supreme Court's Holding in Blakely does not Apply to Convictions which were Final Before Booker was Decided
Petitioner argues that the sentence imposed is in violation of the Sixth Amendment and the Supreme Court's Blakely decision. In particular, he argues that various Offense Characteristics contained in the Presentence Investigation Report ("PSI"), specifically those regarding the November 20, 2000 and December 2, 2000 offenses, "were neither found by a jury, or admitted to by the Movant during the entrance of the guilty plea." (Pet. Br. at 5.) Petitioner claims the PSI relied on these facts to increase his sentence under the U.S. Sentencing Guidelines.
The Petitioner's claim is governed by the Booker decision, not Blakely. Blakely held that "Washington State's determinate sentencing scheme . . . violated the Sixth Amendment right to a jury trial." Lloyd v. United States, 407 F.3d 608, 610 (3d Cir. 2005). Booker applied the Blakely decision to the U.S. Sentencing Guidelines. The Booker court held that the U.S. Sentencing Guidelines violated the Sixth Amendment to the Constitution whenever an enhanced sentence was based on facts (other than a prior conviction) found by the judge, rather than the jury or facts admitted by the defendant. United States v. Booker, 543 U.S. 220, 245 (2005). Therefore, any argument previously made under Blakely is "now, of course, governed by the intervening decision . . . in Booker, which concluded that the holding in Blakely applies to the Federal Sentencing Guidelines." Lloyd, 407 F.3d at 611. Because Petitioner contends that judicial fact-finding led to an enhanced sentence under the U.S. Sentencing Guidelines, his claim is properly governed by Booker, not Blakely.
However, the Booker holding is not retroactively applicable to convictions which were final before Booker was decided. In Lloyd v. United States, the Third Circuit concluded that the "Booker rule constituted a new rule of criminal procedure for the purposes of Teague." Id. However, the Lloyd court determined that the Booker rule was not within the "watershed rule" exception in Teague v. Lane, 489 U.S. 288, 310 (1989), joining the other courts of appeals that have considered the issue.*fn2 Id. at 614. Therefore, the Third Circuit held that "[b]ecause Booker announced a rule that is new and procedural, but not watershed, Booker does not apply retroactively to initial motions under § 2255 where the judgment was final as of January 12, 2005, the date Booker issued." Id. at 615-16.
Petitioner's conviction was final before January 12, 2005. If a writ of certiorari is not filed, "the judgment of conviction does not become 'final' until the time for seeking certiorari review expires. A defendant has ninety days from the date on which the court of appeals affirms the judgment of conviction to file a petition for a writ of certiorari." Kapral v. United States, 166 F.3d 565, 570-71 (3d Cir. 1999).*fn3 Here, the Third Circuit affirmed the judgment of conviction and sentence on May 23, 2003. The ninety day period to file a writ of certiorari expired on August 21, 2003 and, thus, the judgment of conviction became final on that date. Therefore, Petitioner's conviction was final seventeen months before the Booker decision, and almost a year before Blakely.
B. Petitioner's Claim does not Satisfy the Strickland Test Necessary to Establish Ineffective Assistance of Counsel
Petitioner claims ineffective assistance of counsel on the grounds that his attorney withheld information from the Court regarding the extent of ...