The opinion of the court was delivered by: Simandle, District Judge
This matter comes before the Court upon petitioner Clarence Shambry's ("Shambry" or "Petitioner") habeas corpus petition to set aside or correct his sentence under 28 U.S.C. § 2255. [Docket Item No. 1.] On September 9, 2003, Shambry was adjudicated guilty by this Court of possessing a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). (J. & Conviction Order, Gov't. Ex. E.) On December 19, 2003, Shambry was sentenced to 92 months imprisonment with three years supervised release. (Sentencing Hr'g Tr. at 25-26, Gov't. Ex. H.) The term imposed reflects a sentence at the low end of the guideline range of 92-115 months, which was determined by Total Offense Level 24, Criminal History Category V. (Id. at 23.)
Petitioner now brings this application for post-conviction relief pursuant to 28 U.S.C. § 2255, alleging in his submissions to this Court [Docket Items No. 1, 4] that his sentence should be vacated, set aside, or corrected. Petitioner argues that the Government engaged in vindictive prosecution and did not provide sufficient evidence of his prior felony convictions in New Jersey state court. (Pet'r's Pet. To Vacate at 1-4, Pet'r's 1st Am. At 1-3.) Petitioner also filed a Second Amendment to his original petition [Docket Item No. 7] arguing that his Criminal History Score was improperly calculated by the U.S. Probation office prior to sentencing. (Pet'r's 2d Am. at 4.) The petition will be denied in its entirety because the claims in Shambry's initial petition and first amendment are without merit, and his Second Amendment is both procedurally barred and without merit.
Petitioner Clarence Shambry was charged by the Camden Police Department with numerous violations of state law on or about October 18, 2002.*fn1 (Presentence Rep. at 10, Gov't. Ex. G.) On January 7, 2003, a federal grand jury returned a one-count Indictment charging Shambry as a previously convicted felon who was found in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)-(2). (Indictment, Gov't. Ex. A.)
On or about June 20, 2003, Petitioner filed a motion to suppress physical evidence (the firearm) due to an allegedly unconstitutional search and seizure. (Gov't's Answer at 2.) This Court conducted an evidentiary hearing on July 17, 2003. (Mot. Suppress Hr'g. Tr., Gov't Ex. K.) On August 5, 2003, the Court denied Petitioner's motion to suppress. (Op. Den. Mot. Suppress, Gov't Ex. B.) On August 9, 2003, Petitioner waived his right to a jury trial. (Waiver of Jury Trial, Gov't Ex. C.) At his bench trial before the undersigned on September 9, 2003, Petitioner stipulated that the firearm had an obliterated serial number, was loaded and operable, was recovered from Petitioner's person, and that Petitioner was convicted of a crime punishable by imprisonment for a term exceeding one year*fn2 prior to October 18, 2002. (Stipulations, Gov't. Ex. D; Trial Tr. at 7-9, Gov't. Ex. L.) The sole issue tried was whether the firearm had moved in or affected interstate commerce as required by 18 U.S.C. 922(g). (Trial Tr. at 7.) The Government presented expert testimony on this issue from Bureau of Alcohol Tobacco Firearms and Explosives Special Agent John Leonard. (Id. at 10-36.) Based on the evidence, the Court adjudicated Petitioner guilty of being a previously convicted felon in possession of a firearm that had moved in or affected interstate commerce in violation of 18 U.S.C. 922(g)(1). (Id. at 61.)
Petitioner filed a motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29. (Gov't's Answer at 2.) The Court denied Petitioner's motion on October 6, 2003. (Order Den. Rule 29 Mot., Gov't Ex. F.)
Thereafter, a Presentence Investigation Report was prepared by the United States Probation Office. (Presentence Rep., Gov. Ex. G.) The Report assigned a two-level enhancement to Petitioner's Total Offense Level, mandated by the United States Sentencing Guidelines ("U.S.S.G") § 2K2.1(b)(4)*fn3 because the firearm had a defaced or obliterated serial number. (Id. at 5.) Petitioner's Total Offense Level with the enhancement was 26. (Id.) Petitioner's past criminal convictions placed him in a Criminal History Category of V. (Id. at 9-10.) Based on these calculations, the Guideline range for imprisonment was 110 to 137 months. (Id. at 12; U.S.S.G. Ch. 5 Pt. A-Sentencing Table (Apr. 2003)). The Court awarded Petitioner a 2-level reduction for accepting responsibility pursuant to U.S.S.G. § 3E1.1(a). (Sentencing Hr'g. Tr. at 23, Gov't Ex. H.) This reduced Petitioner's Total Offense Level to 24, resulting in a Guideline range of 92 to 115 months imprisonment. (Id. at 23-24, U.S.S.G. Ch. 5 Pt. A-Sentencing Table (Apr. 2003)). The Court sentenced Petitioner to 92 months imprisonment, reflected in a Judgment and Conviction Order entered on January 27, 2004. (Gov't. Ex. E.)
Petitioner appealed his conviction to the United States Court of Appeals for the Third Circuit, which affirmed this Court's ruling on December 22, 2004. See United States v. Shambry, 392 F.3d 631 (3d. 2004). Petitioner filed a Writ of Certiorari to the United States Supreme Court on March 18, 2005. (Gov't's. Answer at 4.) The Court denied Certiorari on April 25, 2005. See Shambry v. United States, 544 U.S. 1006 (2005).
Petitioner timely filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 on January 24, 2006. [Docket Item No. 1.] The Court sent Petitioner a notice informing him that pursuant to United States v. Miller, 197 F.3d 644 (3d. Cir. 1999), he must include all potential claims under § 2255 in a single petition. [Docket Item No. 2.] The Court gave Petitioner 45 days to advise the Court whether he wished to have his petition ruled on as filed, or withdraw the petition and file an all-inclusive § 2255 petition, subject to the 1-year statute of limitations mandated by the Antiterrorism Effective Death Penalty Act ("AEDPA") in 28 U.S.C. § 2255. Petitioner filed a response to this notice on March 9, 2006 [Docket Item No. 4] within the 45-day period, but did not directly respond to the Court's inquiry or raise any new claims. (Pet'r's. 1st Am.) The Court ordered the Government to answer on March 10, 2006 [Docket Item No. 5] and their answer was filed on April 24, 2006 [Docket Item No. 6].
Petitioner filed a Second Amendment to his § 2255 petition on June 27, 2006 ("Second Amendment"). [Docket Item No. 7.] The Government indicated that because Petitioner had not brought new claims in response to the Miller notice, the Government did not intend to respond to Petitioner's Second Amendment unless ordered to do so by the Court. (Gov. Letter, 6-26-06.) For the reasons explained below, the Court shall deny this petition in its entirety.
A. Petitioner's Claims Are Without Merit
1. Petitioner Has Not Made a Prima Facie Showing of Vindictive Prosecution
In his initial petition and first amendment, Petitioner alleges vindictive prosecution by the Government in retaliation against him for going to trial. (Pet'r's Pet. to Vacate at 1-4; Pet'r's 1st Am. At 1-3.)
The prosecution is given broad discretion before trial to select what charges to bring, placing a high burden on claimants seeking to show vindictive prosecution. See United States v. Goodwin, 457 U.S. 368, 382 (1982). This discretion is limited only by the requirement that a charging decision not be "'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary ...