The opinion of the court was delivered by: Sheridan, U.S.D.J.:
This matter comes before the Court upon the August 17, 2009 motion of petitioner Gilbert Nickens ("Petitioner") to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 1). Respondent the United States of America (the "Government") filed an answer on November 2, 2010. (Doc. No. 20) Having considered the parties' submissions without oral argument pursuant to Federal Rule of Civil Procedure 78, this Court will deny Petitioner's motion.*fn1
On June 27, 2007, an indictment was issued by a grand jury in the
District of New Jersey that charged Petitioner with dealing in
firearms without a license in violation of 18 U.S.C. §
(a)(1)(A) & 2, and possessing a firearm as a convicted felon, in
violation of 18 U.S.C. § 922 (g)(1) & 2. (Gov.'s Answer Ex. A. ("Plea
Agreement") at 1). On August 21, 2007, pursuant to a Plea
Agreement, Petitioner entered a plea of guilty. (Id. Ex. B. ("Plea
Hearing Transcript") at 2). During the Rule 11 hearing, the Hon.
Garrett E. Brown, Jr., U.S.D.J., then-presiding, reviewed Petitioner's
answers to the Rule 11 form (Id. Ex. C.) with Petitioner.*fn2
(Id. Ex. B, at 6:2-7:4.). The Government and Petitioner also
entered into a cooperation agreement. (Id. Ex. D.). On March 3, 2008,
in United States v. Sean L. Hagins, 06-cr-485 (LDD), in the United
States District Court in the Eastern District of Pennsylvania,
Petitioner testified as a witness for the Government. (Id. Ex. E.).
Prior to Petitioner's sentencing, the Government filed a motion
pursuant to U.S.S.G. § 5K1.1 that set forth the assistance provided by
Petitioner in the prosecution of others. At sentencing on April 1,
2008, the District Court granted the Government's motion, and departed
downward five levels to a Sentencing Guideline level 25, with a
criminal history category VI (14 points). As such, Petitioner was
sentenced to a term of imprisonment of 114 months instead of a range
of 168 - 210 months. (Id. Ex. F. at 16:3-16:14.). On April 11, 2008,
Petitioner appealed the final judgment of the District Court, but
later withdrew that appeal on August 25, 2008.
On or about August 17, 2009, Petitioner filed the instant motion to vacate, set aside or correct his sentence pursuant to Title 28 U.S.C. § 2255. (Doc. No. 1). Subsequently, in response to the Court's letter issued pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), Petitioner informed the District Court that he desired his § 2255 motion ruled upon as filed. (Doc. No. 3).
Ultimately, the Government filed its Answer on November 2, 2010 (Doc. No. 20), and Petitioner replied on November 16, 2010. (Doc. No. 21).
Petitioner's §2255 motion is based on 3 grounds. First, Petitioner contends that his right to due process of law as guaranteed by the Fifth Amendment to the United Stated Constitution was denied when the prosecution promised an unrealistic sentence of 60 months imprisonment. Second, he argues that his right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution was denied when his counsel thought a sentence of 60 months imprisonment would be incurred. Third, Petitioner claims that both issues led him to enter a constitutionally invalid plea; and he now argues that he is entitled to an evidentiary hearing on these allegations. (Petitioner's Memorandum of Law in Support of Motion to Vacate, Set Aside or Correct Sentence ("Mem. Of Law") at 1). In its answer to Petitioner's §2255 motion, the Government asserts that Petitioner's Fifth Amendment claim is meritless. With regard to Petitioner's Sixth Amendment claim, the Government argues that Petitioner has failed to satisfy the legal test for ineffective assistance of counsel. See Strickland v. Washington,466 U.S. 668 (1984). Finally, the Government argues that Petitioner is not entitled to an evidentiary hearing because his allegations are frivolous based upon the record.
Having reviewed the parties' submissions, this Court agrees with the Government and will deny Petitioner's petition for the following reasons.
A. Standard of Review For 28 U.S.C. § 2255
By its terms, 28 U.S.C. § 2255 permits a court to vacate, correct or set aside a sentence that:
[w]as 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. Generally, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003). However, the Third Circuit has expressed a strong preference that an ineffective assistance of counsel claim be brought before the district court in the first instance in a motion under Title 28 U.S.C. § 2255. See United States v. DeRewal, 10 F. 3d 100, 103 (citing United States v. Rieger, 942 F.2d 230, 235 (3d Cir. 1991)). Since it is appropriate to raise a claim of ineffective assistance of counsel under § 2255, rather than on direct appeal, "the failure to raise such a claim on direct appeal should not ...