The opinion of the court was delivered by: Simandle, District Judge
Petitioner Ricky Munez, proceeding without a lawyer, brings this civil action for habeas corpus relief pursuant to 28 U.S.C. § 2255. Petitioner claims he was denied his Sixth Amendment right to effective assistance of counsel when his trial attorney, Michael W. Kahn, failed to object to three issues: a discrepancy between the Criminal Complaint and the Indictment (Ground I); a violation of the Interstate Agreement on Detainers Act (Ground II); and a miscalculation of the sentencing guidelines (Ground III).*fn1 For the reasons discussed herein, the Court will deny Ground I and Ground III of Petitioner's request for relief without a hearing. However, for Ground II of Petitioner's motion, the Court will grant an evidentiary hearing in order to determine whether relief is warranted upon that ground.
II. FACTUAL AND PROCEDURAL BACKGROUND
On January 23, 2006, the United States government filed a one-count Criminal Complaint against Petitioner, charging him with conspiracy to distribute and to possess with intent to distribute five grams or more of crack cocaine, contrary to 21 U.S.C. § 841(a)(1) and (b)(1)(B), and in violation of 21 U.S.C. § 846. [Criminal No. 06-499 ("Crim.") Docket Item 1.] On February 6, 2006, the United States Marshals Service lodged a Detainer against Petitioner which incorrectly stated, "[t]he notice and speedy trial requirements of the Interstate Agreement on Detainers Act do NOT apply to this Detainer because the subject is not currently serving a sentence of imprisonment at the time the Detainer is lodged." [Civ. Docket Item 6.] Petitioner was, however, serving a sentence at South Woods State Prison in Bridgeton, New Jersey on the date the Detainer was filed, and the requirements and stipulations of the Interstate Agreement on Detainers Act therefore applied. Id.
On July 5, 2006, a federal grand jury returned an indictment charging Petitioner with the offense stated above. He appeared before the Court pursuant to a writ of habeas corpus ad prosequendum on July 19, 2006 for an arraignment, and on October 10, 2006 for a status conference. [Crim. Docket Items 14, 17.] Authorities returned Petitioner to state prison after each proceeding. On October 24, 2006, Petitioner again appeared before the Court for a motions and plea hearing, where Petitioner pleaded guilty to the one-count indictment. [Docket Items 19, 20.]
On March 23, 2007, the Court sentenced Petitioner to 188 months imprisonment followed by five years supervised released after determining the applicable guideline range to be 188-235 months based on Petitioner's total offense level of 31 and Criminal History Category of VI. [Crim. Docket Item 35.] The sentence was concurrent with the sentences Petitioner is serving on seven indictments and convictions in the State of New Jersey. The Third Circuit affirmed the judgment of conviction and sentence but declined to address Petitioner's ineffective assistance of counsel claim. United States v. Munez, 292 Fed. App'x 175 (3d Cir. 2008). On August 4, 2009, Petitioner timely filed the instant motion for relief under 28 U.S.C. § 2255. [Civ. Docket Item 1.]
A. Standard for Ineffective Assistance of Counsel
In order to prevail on a claim for ineffective assistance of counsel, a petitioner must satisfy both elements of the two-part test set out in Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must show that counsel's performance fell below an "objective standard of reasonableness," and was "outside the wide range of professionally competent assistance." Id. at 688, 690; United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007). Counsel's performance must be evaluated from the attorney's perspective at the time of the alleged error, recognizing that a broad range of strategies may have been appropriate under the given circumstances. Strickland, 466 U.S. at 669. Any alleged errors must have been so serious that the attorney was not acting as "counsel" as guaranteed by the Sixth Amendment. Id. at 687.
Second, the petitioner must show that the attorney's performance prejudiced the petitioner such that but for counsel's allegedly deficient performance, the outcome would have been different. Id. at 694. In the context of guilty pleas, the first prong remains the same, Hill v. Lockart, 474 U.S. 52, 57 (1985), but the second prong requires the petitioner to show a reasonable probability that but for counsel's errors, the petitioner would have insisted on going to trial rather than pleading guilty. Id. at 59. If the petitioner fails to show the requisite prejudice, the claim for ineffective counsel should be disposed of on this ground, thereby avoiding the need to evaluate counsel's performance. Strickland, 466 U.S. at 697.
B. Discrepancy Between Criminal Complaint and Indictment
In Ground I, Petitioner claims he was denied effective assistance of counsel when his attorney failed to object to a discrepancy between the dates set forth in the Criminal Complaint and in the Indictment.*fn2 Although Petitioner uses the term "variance" to refer to the deviation, a "variance" in the context of criminal cases refers to a difference between the allegations and the facts proven at trial. Because Petitioner pleaded guilty and no trial was had, no legal variance exists in this case. The case law pertaining to variances in this other sense is nevertheless relevant.
In criminal cases, a variance between the facts proved at trial and the allegations in the indictment is immaterial and may be disregarded if it does not substantially affect the rights of the accused either by "insufficiently informing [the defendant] of the charges against him such that he is taken by surprise and prevented from presenting a proper defense" or "by affording him insufficient protection against reprosecution for the same offense." United States v. Lewis, 893 F.2d 487, 492 (3d Cir. 1997) (citing United States v. Pierce, 893 F.2d 669, 676 (5th Cir. 1990)). "A mere inaccuracy setting forth the date of an offense in a criminal complaint would not appear to be a material or critical variance." United States v. Carter, 756 F.2d 310, 313 (3d Cir. 1985). Moreover, a complaint or indictment which states "on or about" a certain day is not limited to a specific date. ...