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 Jerry Phelps ("Petitioner") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Court File No. 1).*fn1 Petitioner filed a memorandum in support of his Petition (Court File No. 1). The United States filed a response to Petitioner's motion (Court File Nos. 5 & 6). Petitioner filed a reply to the United States' response (Court File No. 9) and an amended motion to vacate, set aside, or correct his sentence (Court File No. 11). Several months later, Petitioner filed two more documents, which the Court will interpret to be amendments to his initial Petition (Court File Nos. 12 & 13). The Court finds the materials thus submitted, together with the complete record of the underlying criminal case,*fn2 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 (1993), and will DENY Petitioner's motion for the reasons stated herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts supporting Petitioner's guilty plea were set forth in the Agreed Factual Basis and in the Presentence Report ("PSR"). On August 5, 2004, Petitioner pleaded guilty to: Count One of the Indictment, charging him with conspiracy to distribute and possession with intent to distribute more than five grams of cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1) & (b)(1)(B) and Count Seven of the Indictment, charging him with possession of a firearm in furtherance of the drug trafficking crime in violation of 18 U.S.C. § 924(c). (Presentence Report ("PSR") at ¶¶ 1, 7-8). Petitioner stipulated to the following facts in the Agreed Factual Basis (Crim. Court File No. 23):
On March 6, 2003, the Chattanooga Police Department Special Investigations Unit executed a search warrant at 2011 A. Raulston Avenue in Chattanooga, in the Eastern District of Tennessee. Detectives knocked and announced "Police Search Warrant" at the front door and then forcibly breached the door. Detective Harper found Michael Cal in the living room. Cal had a plastic bag with a small amount of crack cocaine in his pocket. Detective Yates saw and chased Phelps as he ran to the bathroom. Yates saw Phelps flushing what appeared to be crack cocaine down the toilet.
In the master bedroom, Detective Floyd found a Sig Sauer P226 pistol in plain view in a shoe box on top of a dresser. The pistol was manufactured outside the state of Tennessee and traveled in and affected interstate commerce. There were miscellaneous papers in the room with Phelps' name on them. Floyd also found approximately .25 grams of powder cocaine in a bag on top of the dresser.
In another bedroom, Det. Wolff found approximately 3.8 grams of crack cocaine in one plastic bag in the top dresser drawer and $150 in cash in a jacket pocket in the closet. He also found a small bag of marijuana.
Yates read Phelps his Miranda rights, who signed a written rights waiver form and admitted he sold crack. He admitted that he goes by the street name "Fella" and that he got his crack from his cousin, Chester Phelps, who goes by "Sugar Bear." Phelps stated that he usually got $50 worth of crack at a time from Sugar Bear. Yates had prior informant info that Fella and SugarBear [sic] were selling cocaine and marijuana from the aforementioned residence.
Phelps was on probation for Aggravated Assault, Burglary, and felony Theft at the time of this offense.
On March 3, 2004, the Chattanooga Police Department Special Investigations Unit executed a search warrant at 1715 A Carson Street in Chattanooga, in the Eastern District of Tennessee, where Phelps was staying. Phelps was not at home (nor was anyone else) at the time the search warrant was executed.
In the living bedroom, Detective Wolff found a loaded Hi-Point 9 mm pistol under the couch. The pistol was manufactured outside the state of Tennessee and traveled in and affected interstate commerce. Detective Dossett found a rent receipt made out to Phelps on a shelf.
In the kitchen, the detectives found approx. 2.1 grams of crack cocaine and approx. .9 grams of powder cocaine in 4 small baggies. They also found digital scales, a bag of marijuana, and a disposable camera.
They also executed a search warrant next door and found approx. 2 grams of crack in the possession of Acquanita Lowe, aka "Big Baby." She is Phelps' cousin. She was advised of and waived her Miranda rights and made statements to police admitting that she was holding the crack for Phelps. She also accurately described the gun that belonged to Phelps, down to the duct tape on the clip, without seeing it first.
Phelps gave a statement later at the police station admitting the crack and powder were his.
During the rearraignment hearing, Petitioner admitted that the information contained in the Factual Basis was true and that he was pleading guilty because he was in fact guilty of the charges (Crim. Court File No. 39, Rearraignment Transcript*fn3 ("R.T.") at 11-12).
The PSR was prepared and provided to the parties. Since Petitioner entered a guilty plea to a drug quantity of at least five grams of crack, the probation officer determined the base offense level to be 26, which corresponds with a drug quantity of at least five grams but less than twenty grams of crack (PSR at ¶ 20; U.S.S.G. § 2D1.1 Drug Quantity Table). No enhancements were applied, but a three-level downward adjustment was recommended for acceptance of responsibility, resulting in a total offense level of 23 (PSR at ¶¶ 27-30).
Petitioner was in criminal history category V, resulting in a guideline range of 84 to 105 months on the drug conspiracy conviction (id. at ¶¶ 40, 68). Coupled with the 60-month statutory mandatory consecutive penalty on the § 924(c) conviction, the effective guideline range was 144 to 165 months (id. at ¶ 68).
Petitioner initially filed Blakely-type objections*fn4 to the PSR disputing the drug quantity and arguing that Petitioner had not admitted any drug quantity. Petitioner also objected to the inclusion of the crack found in Ms. Lowe's possession to determine the base offense level (PSR Addendum). The probation officer responded that Petitioner had pled guilty to a drug quantity of at least five grams, and his offense level was based only on that amount (id.). At sentencing, Petitioner "did not object to these calculations or any of the other statements of fact contained in the PSR" (Crim. Court File No. 36, Sentencing Memorandum at 21).
Petitioner was sentenced on January 7, 2005 to a term of imprisonment of 90 months on the conspiracy conviction and a consecutive 60 months on the gun conviction (Court File No. 32). On January 12, 2005, the Supreme Court issued its decision in United States v. Booker, 543 U.S. 220 (2005), making the guidelines advisory rather than mandatory. In light of Booker, Petitioner sought and was granted resentencing by this Court, which was held on March 4, 2005 (Crim. Court File No. 36 at 3). At resentencing, the Court found the effective advisory guideline range was 144 to 165 months as stated in the PSR. Petitioner was sentenced to 150 months, the same as originally imposed (id. at 26). The Court filed a Sentencing Memorandum explaining in detail the Court's findings and its approach to sentencing post-Booker (id.). See United States v. Phelps, 366 F. Supp. 2d 580 (E.D. Tenn. 2005). Petitioner did not file a direct appeal.
Judgment was entered on April 1, 2005 and therefore was considered final on April 11, 2005. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) ("an unappealed federal criminal judgment becomes final ten days after it is entered"). On August 5, 2005, Petitioner timely filed the initial § 2255 motion.*fn5 In his pending § 2255 motion, Petitioner asserts four claims for relief: (1) no evaluation was conducted to determine Petitioner's competency to enter a guilty plea; (2) Petitioner received constitutionally ineffective assistance of counsel because counsel did not file a direct appeal; (3) there was insufficient evidence to support his conviction; and ...