The opinion of the court was delivered by: Kugler, United States District Judge:
(Not for Publication) (Doc. Nos. 1, 4, 8, 12, 14, 17)
Currently before the Court is the motion of Petitioner Anthony Lionetti ("Petitioner") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Respondent United States of America ("Government") submitted an Answer in response to the motion. The Court has considered the parties' submissions, and for the reasons set forth below, concludes that Petitioner's motion must be denied.*fn1
This Section 2255 petition arises out of Petitioner's conviction for income tax evasion.
On April 26, 2005, Petitioner was indicted by a federal grand jury on charges of conspiracy, personal tax evasion, and willful failure to pay employment taxes for Petitioner's two businesses. On October 12, 2006, Petitioner was convicted of three counts of income tax evasion relating to his personal income taxes, and acquitted of the other counts relating to employment tax evasion for Petitioner's businesses. On May 31, 2007, Petitioner was sentenced to serve 41 months in prison, three years of supervised release, and to pay $246,791 in restitution as a condition of supervised release. On June 14, 2007, Petitioner filed a motion to stay the sentence of imprisonment pending appeal, which was granted.
On August 31, 2007, through the same counsel as had represented Petitioner during the trial, Petitioner appealed to the United States Court of Appeals for the Third Circuit on five sentencing issues. On November 12, 2008, the Third Circuit affirmed both the conviction and sentence of Petitioner.
Petitioner subsequently obtained new counsel. On December 17, 2008, Petitioner through his new counsel filed a petition for rehearing with the Third Circuit. In his petition for rehearing, Petitioner claimed that this Court erred in including employment tax loss as relevant conduct for sentencing purposes because this Court had only found Petitioner criminally liable for personal tax evasion and not employment tax evasion. See 2255 Motion, Ex. 2, 24-31. Petitioner also claimed that this Court erred by ordering restitution as a part of the sentence, when this Court should have ordered restitution as a condition of release. Id. at 31-35. On January 8, 2009, the Third Circuit denied the petition for rehearing. On March 20, 2009, Petitioner's bail was revoked and he was remanded to jail.
On June 8, 2009, Petitioner filed a petition for a writ of certiorari to the United States Supreme Court, raising the same issues as were raised in the petition for rehearing. The Supreme Court denied the petition on October 5, 2009.
On October 12, 2009, Petitioner filed a motion for a new trial based on allegedly newly discovered evidence. This Court denied Petitioner's motion on October 29, 2009.
On September 15, 2010, Petitioner filed the present pro se Petition to vacate, set aside, or correct Petitioner's sentence pursuant to 28 U.S.C. § 2255. All parties having briefed the matter, the Petition is now ripe for review.
Pursuant to 28 U.S.C. § 2255, a prisoner in federal custody may move before the court
that imposed the sentence to vacate, set aside, or correct the sentence if it were 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[.]" To establish a right to habeas corpus relief, a petitioner must demonstrate "a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." U.S. v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989). Section 2255 is the preferred method for advancing an ineffective assistance of counsel claim. U.S. v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994). A petitioner is entitled to ...