The opinion of the court was delivered by: Richard H. Battey United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, Matt Greene, moves the Court to vacate, set aside, and/or correct his conviction and sentence pursuant to 28 U.S.C. § 2255.
Petitioner was indicted on March 15, 2007, with one count of conspiracy to distribute methamphetamine. He was arrested on March 19, 2007, and detained pending further proceedings. On June 27, 2007, petitioner pleaded guilty to the indictment. Petitioner was sentenced on April 8, 2008, to a term of 54 months incarceration and a five-year term of supervised release.
On February 9, 2009, petitioner filed an application for writ of habeas corpus. In his petition he alleged that he received ineffective assistance of counsel, that his plea was not a knowing and voluntary plea, that the Bureau of Prisons (BOP) failed to provide him with substance abuse treatment and therefore denied him a potential sentence reduction, and that BOP failed to place him in a halfway house.
Title 28 of the United States Code, section 2255 provides that "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." A petitioner is required to file such a motion within one year. 28 U.S.C. § 2255(f).
A. Ineffective Assistance of Counsel
Petitioner, having filed his petition in a timely manner, alleges that his sentence was issued in violation of his constitutional rights. Petitioner contends that he received ineffective assistance of counsel at the plea stage of his proceedings. Petitioner claims that his counsel was ineffective because he failed to provide petitioner with copies of discovery, failed to maintain contact with petitioner, and failed to discuss the strengths and weaknesses of the government's case against petitioner. Petitioner further contends that this ineffective assistance of counsel resulted in an involuntary and unknowing plea. Petitioner also asserts that he received ineffective assistance of counsel at the sentencing stage of his proceedings due to his counsel's failure to object to the criminal history category utilized by the Court and the two-level enhancement for the possession of a weapon.
To succeed on a claim of ineffective assistance of counsel, petitioner must meet the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). The test requires that petitioner prove that "counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064. To establish that counsel's performance was objectively unreasonable, petitioner "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Mansfield v. Dormire, 202 F.3d 1018,1022 (8th Cir. 2000) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984)). Furthermore, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Johns v. Bowersox, 203 F.3d 538, 546 (8th Cir. 2000).
Petitioner must also prove prejudice by demonstrating "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Williams v. Taylor, 120 S.Ct. 1495, 1511, 146 L.Ed. 2d 389 (2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984)). If a petitioner cannot prove that he was prejudiced by counsel's errors, then the Court need not determine if counsel's performance was deficient. See DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000).
Upon review of the petition and the record of this matter, the Court concludes that petitioner has not shown that he was prejudiced by counsel's alleged errors. First, petitioner has not asserted that he would not have entered into a plea agreement but for counsel's errors. Second, the record reflects that counsel did, in fact, object to the enhancement for possession of a firearm and the criminal history category which the Court utilized. CR. 07-50023, Docket #24.
Furthermore, even if the Court adopted petitioner's position, the outcome of this matter would not have been different. With the use of category III for petitioner's criminal history and the application of a two-level enhancement for possession of a weapon, petitioner was facing a presumptive sentence of 135 to 168 months of incarceration. Sentencing Transcript, p. 3, lns 1-10. If petitioner would have been placed in a criminal history category I and not given an enhancement for possession of a weapon, the presumptive sentence would have been 87-108 months incarceration. For either scenario, petitioner was subject to a term of supervised release of five years. Moreover, petitioner was facing a mandatory minimum sentence of five years incarceration under the statute to which he pled. Petitioner was actually sentenced to 54 months incarceration and five years supervised release. Petitioner would not have fared any better if counsel had been successful in asserting the objections upon which petitioner bases his claim of ineffective assistance.
The Court's determination of the frivolousness of this claim is further bolstered by the colloquy, under oath, that took place between the Court ...