The opinion of the court was delivered by: Kugler, United States District Judge:
NOT FOR PUBLICATION(Doc. Nos. 1, 2, 3, 4, 6)
This matter arises out of a conspiracy to possess and distribute heroin and crack cocaine. Presently before the Court are Petitioner Jose Rodriguez's motions to: (1) vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. Nos. 1, 6); (2) appoint pro bono counsel (Doc. No. 2); (3) request documents and trial transcripts (Doc. No. 4); and (4) preserve the right to submit additional grounds for relief (Doc. No. 3). For the following reasons Petitioner's motions are DENIED.
Rodriguez was indicted on February 22, 2005 by a federal grand jury for conspiracy to possess and distribute more than one kilogram of heroin and more than fifty grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 21 U.S.C. § 846. The indictment alleged that from 1998 through 2002, a gang called the "Perez Organization" distributed drugs throughout Camden, New Jersey. The indictment alleged that Rodriguez was responsible for processing drugs into individual bags for street sale. Rodriguez's co-conspirators, Enrique "Ricky" Perez, Bernard "B-Nice" Murray, Allen "Tito Allen" Resto, and Lorenzo "Fu Quan" Hardwick were also involved in violent activities related to the conspiracy.
On June 6, 2005 the jury found Rodriguez guilty of conspiracy to distribute, and possess with intent to distribute, more than one kilogram of heroin and more than fifty grams of crack cocaine. This Court sentenced Rodriguez to a 360-month term of incarceration. Rodriguez appealed, arguing that the Court improperly denied his motions for severance and a separate trial, and requested resentencing. U.S. v. Hardwick, 544 F.3d 565, 577 n.1 (3d Cir. 2008), cert. denied, 129 S. Ct. 1371 (2009). The Third Circuit rejected each of Rodriguez's challenges and affirmed his conviction and sentence. See id. at 574.
On February 23, 2010, Rodriguez filed a motion pro se to vacate his sentence under 28 U.S.C. § 2255. In that motion, Rodriguez argued that the Court erred by denying his motion for severance, improperly applied the sentencing guidelines, and failed to give a proper jury instruction. Rodriguez also alleged ineffective assistance of counsel. Specifically, Rodriguez alleged that his attorney: (1) failed to properly argue for severance; (2) failed to request a jury instruction that a defendant cannot conspire with a government agent; and (3) failed to submit a specific statement made by a government informant's girlfriend that contradicted the informant's testimony at trial.
In another motion, Rodriguez requests pro bono counsel and additional court documents and records to aid him in preparing his § 2255 petition. Finally, Rodriguez moves to preserve the ability to supplement his § 2255 motion with additional documentation.
A prisoner in federal custody may file a motion in federal court challenging the validity of his sentence under 28 U.S.C. § 2255. Morelli v. United States, 285 F. Supp. 2d 454, 458 (D.N.J. 2003). 28 U.S.C. § 2255 provides that a petitioner may move to vacate, set aside or correct a sentence on the grounds "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." 28 U.S.C. § 2255. To establish a right to habeas corpus relief, a petitioner must demonstrate that the sentence has a fundamental defect resulting in a complete miscarriage of justice, or an omission inconsistent with the rudimentary demands of fair procedure. See e.g., United States v. DeLuca, 889 F.2d 503, 506 (3d Cir.1989); Morelli, 285 F.Supp.2d at 458-59 (citations omitted).
A.Petitioner's Challenge to the Jury Charge
Rodriguez asserts the Court erred in instructing the jury. Particularly, Rodriguez argues that the Court erroneously failed to give an instruction that a defendant cannot conspire with Government agents and informants.*fn1 The Government argues that because Rodriguez did not challenge the jury instructions on direct appeal, he cannot raise the issue in a § 2255 motion. The Court agrees.
Under the procedural default rule, claims which could have been raised on direct appeal, but which a defendant chose not to raise, may not be raised on collateral review in a § 2255 motion. See United States v. Frady, 456 U.S. 152, 162-63 (1982). The procedural default rule protects "society's legitimate interest in the finality of the judgment [that] has been perfected by the expiration of the time allowed for direct review or by the affirmance of the conviction on appeal." Id. at 164. To overcome procedural default, the petitioner must prove cause and prejudice. Massaro v. United States, 538 U.S. 500, 504 (2003). Cause must be something objective and external to the petitioner which cannot be attributed to him. Murray v. Carrier, 477 U.S. 478, 488 (1986). An attorney's failure to appeal does not constitute "cause" unless the attorney's performance amounted to constitutionally ineffective assistance of counsel. Id. The petitioner must also prove prejudice by "showing, not merely that the error at his trial created a possibility of prejudice," but that the error "worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimensions." Frady, 456 U.S. at 170 (emphasis in original). The defendant bears the burden of proof, and "to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." Id. at 166.
Here, Rodriguez had the opportunity to appeal directly to the Third Circuit and argue that the lack of a particular jury instruction was clear error, but he did not do so. See id. at 163. Rodriguez offers no reason why he did not directly appeal the issue. Because Rodriguez fails to prove either cause or prejudice, he is procedurally barred from raising the issue on collateral review in this § 2255 petition.
Rodriguez asserts that the Court erred by not severing his trial from that of his co-defendants. Before trial, the Court denied Rodriguez's motion for severance. Rodriguez appealed the issue to the Third Circuit. The Third Circuit found Rodriguez's argument meritless. See Hardwick, 544 F.3d at 577 n.1. Now, Rodriguez argues that the Court failed to ...