The opinion of the court was delivered by: Simandle, District Judge
This matter comes before the Court upon Petitioner Oswald Aceves Flores's habeas corpus application under 28 U.S.C. § 2255. On June 14, 2005 Petitioner pleaded guilty to two drug-related crimes. On November 3, 2005, this Court sentenced the Petitioner to serve a term of imprisonment for 135 months, consisting of 75 months on Count One and 60 months on Count Two, to be served consecutively. Petitioner argues that drugs found in his bedroom were incorrectly taken into account during sentencing, that the sentences for the two counts should run concurrently rather than consecutively, and that his counsel was ineffective. For reasons discussed herein, the Petition will be denied.
On June 14, 2005 Petitioner Oswald Aceves Flores, also known as Richard Lopez-Arias, pleaded guilty to two counts: (1) violating 21 U.S.C. §§ 841(a)(1) and 846, which prohibit possessing controlled substances with intent to distribute and conspiring to distribute controlled substances; and (2) violating 18 U.S.C. § 924(c)(1)(A), which prohibits carrying a firearm during and in relation to a drug trafficking crime. (Plea Hr'g Tr. 19:4-5, June 14, 2005, Resp't's Br. Ex. A.)
Mr. Flores admitted that on or about December 2, 2004 he and a co-conspirator met with an undercover agent and agreed to sell three kilograms of cocaine and eight pounds of marijuana. (Id. at 20:19-22:8.) Although Mr. Flores did not know firearms were present, he agreed that it was reasonably foreseeable that guns would be present at the transaction. (Id. at 22:13-25.) Mr. Flores gave consent for agents to search his home where, in his dresser, they found a brick of cocaine, bags of cocaine in a sweat sock, and large amounts of cash. (Sentencing Hr'g Tr. 8:17-9:20, Nov. 3, 2005, Resp't's Br. Ex. C.)
On November 3, 2005, the Court sentenced the Petitioner to 75 months for the first count and 60 months for the second count to run consecutively for a total of 135 months in prison. (Id. at 44:11-46:10) The first count carried a mandatory minimum sentence of 60 months, and the Court increased the sentence to 75 months after taking into account the drugs found in Petitioner's bedroom and the advisory guideline range of 70 to 87 months as well as other factors from 18 U.S.C. § 3553(a). (Id. at 16:3-17:2; 39:12-44:7.) The Court found the storage of drugs in the Petitioner's bedroom as conduct collateral to the conviction under United States Sentencing Guidelines § 1B1.3(a)(2),*fn1 and alternately as foreseeable conduct committed by a co-conspirator under Pinkerton v. United States, 328 U.S. 640, 647 (1946) (holding that acts in furtherance of a conspiracy are attributable to all conspirators even if only one actually carried out the acts). (Id. at 14:13-16:13.) The Court signed the judgment of conviction on November 3, 2005. [United States v. Flores, Cr. No. 05-CR-259-JBS (hereinafter "Crim Docket") Item 29.]
On November 9, 2005 Petitioner filed a notice of appeal with this Court without assistance of his attorney. [Crim Docket Item 30.] Petitioner's counsel filed a brief to the Third Circuit Court of Appeals pursuant to Anders v. California, 386 U.S. 738, 744 (1967), which allows counsel to request permission to withdraw if he or she feels the appeal is wholly frivolous. Anders Br., United States v. Lopez-Arias, No. 05-5001, 2006 WL 6221122 (3d Cir. May 13, 2006). In his Anders brief, Counsel argued that the only contestable issue was ineffective assistance of counsel and it would have been a conflict of interest for him to argue that he had been ineffective. Id. The Petitioner proceeded on appeal without a lawyer arguing, among others things, that the finding of the drug quantity was improper and that his counsel was ineffective. On January 14, 2008, the Third Circuit Court of Appeals granted counsel's motion to withdraw and affirmed the conviction and sentence, finding no error with the quantity of drugs used in sentencing and declining to consider the ineffective assistance of counsel claim on direct appeal. United States v. Lopez-Arias, 260 Fed. App'x 481, 483 (3d Cir. 2008). On February 13, 2008, the Third Circuit denied Petitioner's request for rehearing by the panel and the Court en banc. On June 16, 2008, the United States Supreme Court denied a petition for a writ of certiorari. Flores v. United States, 128 S.Ct. 2947, 2947 (2008).
On June 4, 2009 Mr. Flores filed the present petition under 28 U.S.C. § 2255 to vacate, set aside, and correct his sentence. [Civil Docket, No. 09-CV-2724, (hereinafter "Civ Docket") Item 1.] On July 7, 2009, in accordance with United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999), the Court notified Petitioner of the requirement that he must include all his claims for relief in his § 2255 motion, and gave him an opportunity to add new claims. [Civ Docket Item 2.] Because the Petitioner did not notify the Court of an amendment or withdrawal of his habeas application, the petition will be ruled upon as filed. On August 4, 2009, the United States Attorney filed a motion to dismiss Petitioner's § 2255 application. [Civ Docket Item 3.]
28 U.S.C. § 2255(a) allows a prisoner held on a federal sentence to apply to have the sentence vacated, set aside, or corrected if, among other things, the sentence was imposed in violation of the Constitution or is otherwise subject to collateral attack, as in the case of an error of law that amounts to a "fundamental defect which inherently results in a miscarriage of justice." Brecht v. Abrahamson, 507 U.S. 619, 634 n.8 (1993) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Generally, issues not raised on direct appeal may not be raised in collateral proceedings unless a petitioner can show cause for default that justifies why the issue was not raised and actual prejudice that resulted. United States v. Findlay, 456 U.S. 152, 167 (1982). One of the ways a convicted defendant can show justifying cause is by demonstrating ineffective assistance of counsel. United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000).
A pleading filed without a lawyer is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). Such a petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 ...