The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
Wilfredo Sanchez ("Sanchez" or "petitioner") pled guilty to a one count information charging him with violating 21 U.S.C. §§ 841(a)(1) and (b)(1) (c), and received a sentence of 188 months imprisonment and 5 years supervised release. Sanchez has petitioned the Court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
Sanchez pled guilty to a single count of distributing and possessing with intent to distribute heroin. The plea agreement stipulated that under the United States Sentencing Guidelines ("U.S.S.G."), Sanchez was a career offender, in criminal history category VI, and the adjusted offense level was 29, reflecting a base offense level of 32 adjusted downward by 3 levels based on his timely acceptance of responsibility. This resulted in a sentencing range of 151 to 188 months. See Plea Agreement Schedule A (March 4, 2002). Petitioner indicated in his Rule 11 form filed at the time of the plea hearing with the assistance of his attorney, he read and understood his plea agreement.
At the sentencing hearing, July 19, 2002, counsel for Sanchez made a motion for a downward departure, arguing that his classification as a career offender seriously overstated his criminal history. Judge Alfred Wolin denied the motion and sentenced petitioner to 188 months imprisonment, a $500 fine, and 5 years supervised release.
Petitioner's counsel filed an Anders brief with the Third Circuit, asserting there were no non-frivolous issues raised on appeal and requesting to withdraw as counsel. The request to withdraw as counsel was granted.
On July 24, 2004, Sanchez, acting pro se,filed a timely direct appeal in the United States Court of Appeals for the Third Circuit, raising seven points: (1) defendant did not agree to the plea voluntarily; (2) the district court should not have used previous criminal convictions to enhance defendant's sentence because the government did not file an information stating that it intended to rely on those convictions; (3) the indictment failed to specify a particular quantity of drugs and therefore denied defendant his due process rights; (4) the district court erred in finding defendant to be a career offender; (5) the district court failed to articulate its reasons for imposing the sentence; (6) the indictment was invalid since the foreperson of the grand jury did not sign it, pursuant to Federal Rule of Criminal Procedure 6(c); and (7) the district court erroneously sentenced defendant at the wrong sentencing level.
The Third Circuit affirmed Sanchez's conviction and sentence on March 11, 2003. Petitioner had until June 9, 2003 to file a petition for a writ of certiorari with the Supreme Court of the United States but did not do so.
On June 21, 2004, Sanchez mailed a petition to the district court asking the court to review his sentence. The district court deemed the petition to be a motion pursuant to 28 U.S.C. § 2255 and filed it as such on September 13, 2004. The court then granted petitioner's motion for leave to amend/supplement his 28 U.S.C. § 2255 application on January 10, 2005. Sanchez's petition alleges that: (1) the district court sentenced petitioner under an incorrect application of the U.S.S.G. when it determined that departure under U.S.S.G § 4A1.3 was limited by the provisions in U.S.S.G. § 5K2.0; (2) the trial court displayed a definite bias toward petitioner when it compared petitioner's actions with those of the Crips street gang; and (3) counsel was ineffective for failing to move for downward departure based on petitioner's mental and emotional condition, in violation of his Sixth Amendment right to effective counsel. (Motion Pursuant to 18 U.S.C. § 3742(a)(2) and Motion for Leave to Amend Section 2255 Motion ("Motion under 28 U.S.C. § 2255."))
Section 2255 of Title 28 of the United States Code provides in 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.
In addition, § 2255 provides a one-year Statute of Limitations for applications under the statute. The pertinent section provides that "[a] 1-year period of limitation shall apply to a motion under this section" and that the "limitation period shall run from . . . the date on ...