The opinion of the court was delivered by: Simandle, District Judge
Petitioner Shcray Hill brings this pro se civil action for habeas corpus relief pursuant to 28 U.S.C. § 2255. Petitioner is a federal prisoner currently serving a sentence of 120 months for violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count One), and 60 months for violation of 18 U.S.C. § 924(c) (Count Two), consecutively, for a total of 180 months. Petitioner challenges his conviction and sentence only on Count One, on the grounds that he received ineffective assistance of counsel. He requests that the court vacate, set aside, or correct this sentence pursuant to 28 U.S.C. § 2255. For the reasons explained below, the Court will deny this petition for habeas corpus relief.
Originally, on September 26, 2003, this Court sentenced Petitioner to a 190-month sentence, based upon his plea of guilty to possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). See United States v. Hill, Criminal Action No. 03-685 (JBS), dkt. Item 26 at l.
While Petitioner's Presentence Investigation Report ("PSR") called for a Sentencing Guideline range of 262 to 327 months' imprisonment, Petitioner argued, and the Court agreed, that classifying Petitioner as a Career Offender overstated his criminal history. (Tr. at 9.) Therefore, the Court granted Petitioner's motion for a downward departure under U.S.S.G. § 4A1.3(b), reducing Petitioner's Offense Level of 31, and Criminal History Category VI, down to an Offense Level 27, Criminal History Category V. (Id.) The departure resulted in a Guidelines range of 120 to 150 months on Count One. (Id.) This Court decided, in light of the seriousness of the offense, Petitioner's uncertain commitment to rehabilitation, and the need to protect the community, to sentence Petitioner to 130 months on Count One, followed by a mandatory, consecutive 60-month sentence on Count Two. (Tr. at 9-10.)
Thereafter, Petitioner appealed to the Third Circuit. While the appeal was pending, the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), determining that the U.S. Sentencing Guidelines must be applied in a non-binding fashion in order to avoid unconstitutionality. The Court of Appeals vacated the sentence and remanded the matter to this Court for resentencing in light of the principles that had subsequently been announced. Hill, 206 Fed. Appx. at 222.
Accordingly, this Court held a resentencing hearing on April 14, 2005. (Tr. at 1.) Throughout the hearing, counsel for Petitioner, Brian J. McMonagle, Esq., reiterated the discretionary nature of the Sentencing Guidelines. (R. at 3, 5, 8-9.) Mr. McMonagle argued that, "[w]ith the Guidelines obviously being rendered as a guide, and this Court having discretion", (Tr. at 3), the Court had the power to render a sentence outside the Guideline range, if deemed appropriate. Mr. McMonagle later stated, "your Honor today has the opportunity . . . to fashion a sentence that would allow [Petitioner] to spend ten years in jail," again indicating the discretionary nature of the Sentencing Guidelines, and the ability of the this Court to make a sentencing decision outside of the advisory Guideline range. (Tr. at 5.)
The Court likewise acknowledged the discretionary nature of the Guidelines throughout the sentencing hearing. The Court explained that its decision to grant a downward departure of one level "came from a Guideline that, of course, is still good law, but now it's non-binding . . ." (Tr. at 10.) The Court further demonstrated its recognition of the advisory nature of the Guidelines when it commented on its initial sentencing decision from September 2003, stating, "I didn't give him 120 months, I didn't feel that constrained by the Guidelines, I gave him 130 [months]." (Tr. at 9.)
After hearing the arguments of counsel as to the appropriate sentence to be imposed, the Court stated:
It's my obligation to take all of the circumstances and all of the facts of this case into account and to impose a sentence that is reasonable. The factors that have to be taken into account are all of those enumerated by Congress in Section 3553(a) of the criminal code. Those factors include the Sentencing Guidelines themselves that have been enacted for use in Federal Court. (Tr. at 32.) Before proceeding to the § 3553(a) provisions, the Court explained that it would "start with the Sentencing Guidelines, recognizing that they are advisory but believing in this case, as in most, they provide guidance for what the overall sentence should be." (Tr. at 33.) (emphasis added).
In determining the proper Guideline range, this Court again found that there was "an overstatement in elevating the offender to career offender status," thereby reducing the Total Offense Level to 27 and Criminal History to Category V, and resulting in a Sentencing Guideline range of 120 to 150 months on Count One. (Tr. at 33.)
Following the determination of the proper Guidelines range, the Court discussed, in detail, the provisions of § 3553(a) as they applied to Petitioner. These considerations included the nature and circumstances of the offense, (which included possession of seven firearms and sale of $50,000 in cocaine), the characteristics of Petitioner, the need for the sentence to reflect the seriousness of the offense, the need to protect the public from further crimes committed by Petitioner, the need for rehabilitation, and the need to avoid unwarranted disparities among defendants with similar records. (Tr. at 34-37.) The Court further noted positive steps Hill was taking toward rehabilitation during his time in prison since the first sentencing. (Tr. 34-35.) After weighing the § 3553(a) factors, the Court found that they supported a slightly reduced sentence, but that "the need to punish, the need to deter, the need to protect society are still extremely important. And the total sentence then of 180 months I find to be the appropriate sentence." (Tr. at 37.)
Petitioner appealed the reduced sentence decision to the Court of Appeals. Hill, Fed. Appx. at 223. On November 20, 2006 the Court of Appeals issued a decision affirming the judgment of this Court, finding that Mr. Hill's appeal was frivolous. Hill, 206 Fed. Appx. at 222. The Court stated in its opinion:
At [petitioner's] original sentencing hearing he was the beneficiary of a downward departure adjustment that reduced both his Total Offense Level and his Criminal History Category. At resentencing, the District Court fully considered each of the factors enumerated in 18 U.S.C. § 3553(a) and meticulously explained why ...