The opinion of the court was delivered by: Irenas, Senior District Judge
Before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 and Petitioner's Motion for Summary Judgment on his § 2255 Motion due to the United States' failure to answer within the time period set by this Court. For the reasons set forth below, the Court will deny both Motions.*fn1
Petitioner has been sentenced several times for different offenses, in both state and federal court. Petitioner filed his § 2255 Motion for relief seeking to vacate his sentence of March 17, 2008, wherein this Court sentenced him to 27 months of imprisonment and 3 years of supervised release. This sentence stemmed from Petitioner's guilty plea made pursuant to a plea agreement to a one count information for transportation of stolen goods in interstate commerce. At Petitioner's request and with the government's consent, this Court ordered Petitioner to report to the Federal Bureau of Prisons on April 25, 2008.
On April 4, 2008, before surrendering to commence his federal sentence, Petitioner was taken into custody by the State of New Jersey on a parole violation, resulting from the federal offense. On October 29, 2008, Petitioner filed a motion for relief pursuant to 18 U.S.C. § 3621, requesting that this Court retroactively order that his 27 month federal sentence be served concurrently with the state sentence on his state parole violation. This Court denied Petitioner's request in an Order dated November 5, 2008.
On January 19, 2010, Petitioner completed his state sentence and was released to federal custody to begin serving his federal sentence. On April 19, 2010, Petitioner filed his motion for relief pursuant to 28 U.S.C. § 2255 seeking to vacate his federal sentence. On April 29, 2010, this Court issued an Order directing the United States to answer Petitioner's Motion. On July 22, 2010, Petitioner filed his Motion for Summary Judgment based on the failure of the United States to answer within the time period set by this Court. On July 30, 2010, the United States answered Petitioner's Motion.
Section 2255 provides, in pertinent 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.
28 U.S.C. § 2255; see also Rules Governing § 2255 Cases, Rule 1(a). Thus, Petitioner is entitled to relief only if he can establish that he is in custody in violation of federal law or the Constitution.
A district court is given discretion in determining whether to hold an evidentiary hearing on a § 2255 application. See Gov't of the V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In exercising that discretion, the court must first determine whether the petitioner's claims, if proven, would entitle him to relief, and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3d Cir. 1991). Accordingly, a district court may summarily dismiss a § 2255 application without a hearing where the "motion, files, and records 'show conclusively that the movant is not entitled to relief.'" U.S. v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (quoting U.S. v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)); Forte, 865 F.2d at 62.
Petitioner seeks to vacate his federal sentence on the grounds that his counsel was constitutionally deficient by failing to provide him with "any certainty or guidance that the disposition of the federal sentence would be or possibly could be a concurrent or consecutive sentence."*fn2
The United States opposes Petitioner's § 2255 Motion, arguing: (1) Petitioner failed to timely file his Motion; (2) Petitioner waived his right to collaterally attack his sentence in a plea agreement that was entered knowingly and voluntarily; and (3) Petitioner's ineffective assistance of counsel allegations do ...