The opinion of the court was delivered by: Chief Judge Curtis L. Collier
This matter comes before the Court on the motion of pro se petitioner Darrell Owens ("Petitioner") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Court File No. 1, "Petition"). Petitioner filed a memorandum in support of his Petition (Court File No. 2, "Petitioner's memorandum"). Pursuant to the Court's Order (Court File No. 3), the Government filed a response to Petitioner's motion (Court File No. 5, "Government's Response"). The Court finds the materials thus submitted, together with the complete record of the underlying criminal case,*fn1 conclusively show Petitioner is not entitled to relief on the claims asserted in his Petition. Accordingly, the Court will decide those matters without an evidentiary hearing, see United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir.), cert. denied, 508 U.S. 943, 113 S.Ct. 2423, 124 L.Ed. 2d 644 (1993), and will DENY Petitioner's motion for the reasons stated herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken directly from the agreed upon factual basis filed with the Court on July 20, 2004:
a. On April 8, 2003, police were dispatched to Tunnel Boulevard, in Chattanooga, in the Eastern District of Tennessee, on a 911 disorder call. The caller stated that the attacker had a gun. When police arrived, they saw the defendant standing over a naked female victim who was in a car. The police took the defendant into custody and found a loaded .25 caliber semi-automatic pistol in his back pants pocket.
b. The victim, a prostitute, stated that the defendant had asked her for a date. She told him to take her to her sister's house to talk about it. The defendant then accused her of stealing his money. The defendant made her take all of her clothes off, put the pistol to her stomach, and threatened to kill her unless she gave him his money back.
c. The firearm and ammunition were manufactured outside the state of Tennessee and traveled in and affected interstate commerce.
d. Prior to April 8, 2003, the defendant was convicted in court of a crime punishable by a term of imprisonment exceeding one year. (Crim. Court File No. 16). On July 22, 2004, Petitioner pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§922(g)(1) and 924(e).
The Presentence Investigation Report ("PSR") was prepared and provided to the parties on September 15, 2004. In the calculation of the base offense level, the probation officer identified five predicate convictions which were either a serious drug offense or a crime of violence and classified Petitioner as an Armed Career Criminal. (PSR at ¶ 25). Petitioner's guideline range was determined to be 188 to 235 months. (Id. at ¶ 75). As an Armed Career Criminal, Petitioner was subject to a statutory minimum mandatory sentence of 180 months. (Id. at ¶ 74). On October 22, 2004, the Court sentenced Petitioner to a term of imprisonment of 188 months (Crim. Court File Nos. 17, 19, 20). No direct appeal was filed. Judgment was entered on November 23, 2004 (Crim. Court File No. 20) and became final on December 7, 2004.
On July 21, 2005, Petitioner timely filed his petition (Court File No. 1). Petitioner claims he received constitutionally ineffective assistance of counsel because counsel: (1) failed to challenged three of his prior felony convictions, which he asserts are potentially not predicate convictions under the Armed Career Criminal Act ("ACCA"), and (2) did not consult with him about filing a direct appeal to challenge his sentence based upon the United States Supreme Court's intervening decision in United States v. Booker, 125 S.Ct. 738 (2005) (Court File Nos. 1, 2). For the reasons stated below, these claims provide no basis to grant his Petition.
Section 2255 of Title 28 of the United States Code permits a prisoner in custody under sentence of a federal court to move the court which imposed the sentence to vacate, correct, or set aside that sentence, on the grounds: 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. This Court has jurisdiction under 28 U.S.C. § 1331. Petitioner has the burden of establishing any claim asserted in the petition. See Bowers v. Battles, 568 F.2d 1, 5 (6th Cir. 1977); Mayes v. United States, 93 F. Supp. 2d 882, 886 (E.D. Tenn. 2000).
Where a constitutional error is alleged, in order to obtain relief under § 2255 the record must reflect a constitutional error of such magnitude it had a substantial and injurious effect or influence on the proceedings. See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1721-22, 123 L.Ed. 2d 353 (1993); Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). In order to prevail on a § 2255 motion alleging non-constitutional error, a petitioner must show a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Riggs v. United States, 209 F.3d 828, 831 (6th Cir.), cert. denied, 531 U.S. 884, 121 S.Ct. 200, 148 L.Ed. 2d 140 (2000); Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994). Thus, "[a] motion brought under § 2255 must allege one of three bases as a threshold standard: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001).
Petitioner's two claims rest on allegations of ineffective assistance of counsel. The Sixth Amendment provides, in pertinent part, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 ...