The opinion of the court was delivered by: Honorable Joseph E. Irenas
Before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court will deny Petitioner's Motion.
On April 25, 2007, Petitioner was indicted by a federal grand jury on drug charges. At the time, Petitioner was serving an unrelated state sentence for aggravated assault. Petitioner first appeared in this Court on May 10, 2007. Petitioner was arraigned on the federal drug charges on May 18, 2007. Petitioner's state sentence expired on September 17, 2008, at which point he was moved to federal custody. Petitioner pledguilty to the federal indictment on August 18, 2009, and was sentenced that day.
At sentencing, this Court denied Petitioner credit against his federal sentence for the time Petitioner spent in state custody following his federal indictment. This Court explained that it lacked the authority to do so, and advised Petitioner that if he did not get the credit he was seeking from the BOP, he should "make sure he administratively appeals that to the system" and, if such appeal was unsuccessful, file a motion pursuant to 28 U.S.C. § 2241. Petitioner did not appeal this Court's decision.
After sentencing, the federal Bureau of Prisons ("BOP") granted Petitioner jail credit only from September 18, 2008, the day he entered federal custody, to August 17, 2009, the day before he was sentenced in this Court.
Petitioner did not pursue any administrative appeal with the BOP, and filed the present motion with this Court on April 22, 2010.*fn1
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 argue to the court that it had the authority to give Petitioner credit from May 10, 2007 under guideline section 5G1.3(c)."
The United States opposes Petitioner's § 2255 Motion, arguing: (1) Petitioner's ineffective assistance of counsel allegations do not meet either prong of the Strickland v. Washington test, see 466 U.S. 668 (1984), and (2) Petitioner's motion effectively complains about the terms and ...