The opinion of the court was delivered by: RICARDO URBINA, District Judge
DENYING THE PETITIONER'S § 2255 MOTION
On April 10, 2003, the petitioner, Deborah Waldrop, pled guilty
to two counts of unlawful distribution of cocaine base, one count
of unlawful possession with intent to distribute over fifty grams
of cocaine base, and one count of unlawful distribution of five
grams or more of cocaine base. On October 20, 2003, the court
sentenced the petitioner to 120 months incarceration for each of
the four counts, the individual sentences to run concurrently. In
computing the petitioner's sentence, the court declined to apply
the "safety valve" provision of the United States Sentencing
Guidelines ("U.S.S.G."), which is afforded to defendants who
cooperate fully with the government. As a result, the petitioner
did not receive the benefit of the two-point reduction in her
offense level. The petitioner filed an appeal with the D.C.
Circuit arguing that the court erred in not applying the "safety
valve provision." On April 6, 2005, the petitioner filed the instant motion for
relief under 28 U.S.C. § 2255*fn1 arguing that (1) the court
erred in not applying the "safety valve" provision of the
U.S.S.G., (2) the court improperly applied the sentencing
framework for "crack" cocaine rather than cocaine base, and (3)
her counsel was ineffective in failing to advise her to accept a
plea to a lesser included offense.*fn2 Because the D.C.
Circuit has affirmed this court's refusal to apply U.S.S.G. §
5C1.2, because she is procedurally barred from raising the second
claim, and because she has failed to demonstrate that her trial
counsel was ineffective, the court denies the petitioner's
A. Legal Standard for § 2255 Motions
A person may challenge the validity of his sentence under
28 U.S.C. § 2255 by moving the court that imposed the sentence to
"vacate, set aside, or correct the sentence." 28 U.S.C. § 2255;
see also Daniels v. United States, 532 U.S. 374, 377 (2001);
Wilson v. Office of Chairperson, Dist. of Columbia Bd. of
Parole, 892 F. Supp. 277, 279 n. 1 (D.D.C. 1995) (holding that
"it is well settled in this jurisdiction and elsewhere that §
2255 will lie only to attack the imposition of a sentence and that an attack on the execution
thereof may be accomplished only by way of habeas corpus in the
district of confinement") (quoting Hartwell v. United States,
353 F. Supp. 354, 357-58 (D.D.C. 1972)).
Section 2255 authorizes the sentencing court to discharge or
resentence a prisoner if the court concludes that it was without
jurisdiction to impose the sentence, the sentence was in excess
of the maximum authorized by law, or the sentence is otherwise
subject to collateral attack. 28 U.S.C. § 2255; United States v.
Addonizio, 442 U.S. 178, 185 (1979) (noting that "[t]his statute
was intended to alleviate the burden of habeas corpus petitions
filed by federal prisoners in the district of confinement, by
providing an equally broad remedy in the more convenient
jurisdiction of the sentencing court") (citing United States v.
Hayman, 342 U.S. 205, 216-17 (1952)). A petitioner can
collaterally attack his sentence under section 2255 when the
sentencing judge made an "objectively ascertainable error." King
v. Hoke, 825 F.2d 720, 724-25 (2d Cir. 1987) (citing
Addonizio, 442 U.S.C. at 187).
Relief under section 2255, however, is an extraordinary remedy,
Addonizio, 442 U.S. at 184; United States v. Pollard,
959 F.2d 1011, 1020 (D.C. Cir. 1992), and the person seeking to
vacate his sentence shoulders the burden of sustaining his
contentions by a preponderance of the evidence. United States v.
Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973); accord Triana v.
United States, 205 F.3d 36, 40 (2d Cir. 2000).
B. The Court Denies the Petitioner's Claim of Failure to Apply
the U.S.S.G. § 5C1.2, "Safety Valve" Provision
A petitioner's § 2255 claims may be dismissed if the claims
raised are the same as those raised previously on direct review.
United States v. Cooper, 725 F.2d 756 (D.C. Cir. 1984) (holding that because a petitioner's claim had been denied on the
merits on appeal, the trial court properly dismissed the § 2255
claim) (citing Tucker v. United States, 427 F.2d 615, 617 (D.C.
Cir. 1970) (holding that a § 2255 motion may be summarily denied
if, "the grounds for relief relied upon were previously
determined, on the merits, adversely to the applicant after an
adequate hearing, and the ends of justice would not be served by
reaching the merits of the new application") (internal quotation
marks omitted); see also Wright v. United States, 182 F.3d 458,
467 (6th Cir. 1999) (holding that the petitioner could not
challenge the government's evidence that the defendant possessed
contraband because that issue had previously been resolved by the
appellate court); Riascos-Prado v. United States, 66 F.3d 30,
33-34 (2d Cir. 1995) (ruling that the petitioner could not raise
ineffective assistance of counsel claim in § 2255 motion because
that issue had previously been resolved on direct appeal).
Here, the petitioner argues that the court erred in refusing to
apply U.S.S.G. § 5C1.2, the "safety valve" provision. Pet'r's
Mot. at 1-3. On May 24, 2005, the D.C. Circuit affirmed this
court's determination on that issue. United States v. Waldrop,
Slip Op. 03-3128 (D.C. Cir. May 24, 2005). The D.C. Circuit found
that this court's determination was "amply supported by the
evidence, and the finding upon which it rests certainly is not
clearly erroneous." Id. at 2. Because the D.C. Circuit has
definitively ruled on the precise issue before the court, the
petitioner's U.S.S.G. § 5C1.2 claim is barred. See Cooper,
725 F.2d at 756.
C. The Court Denies the Petitioner's Claim of Insufficient
When a petitioner fails to raise an argument on direct appeal,
he may raise a collateral claim, pursuant to § 2255, only if he
can show cause and prejudice, or actual innocence. Massaro v.
United States, 538 U.S. 500
, 504 (2003); Pettigrew,
346 F.3d at 1144. To show cause and prejudice for the procedural default, the petitioner
must (1) demonstrate good cause for his failure to raise the
issue on appeal and (2) show that the issue he is raising caused
actual prejudice. Bousley v. United States, 523 U.S. 614
(1998); United States v. Kleinbart, 27 F.3d 586, 590 (D.C. Cir.
1994). Although a petitioner can establish cause if a claim would
have been "so novel that its legal basis [was] not reasonably
available to counsel," novelty does not exist merely because the
claim would have been "unacceptable to that particular court at
that particular time." Bousley, 523 U.S. at 623 (quoting Engle
v. Isaac, 456 U.S. 107
, 130 n. 35 (1982)).
The petitioner argues that there was an insufficient
evidentiary basis to support her guilty plea to possession and
distribution of crack cocaine. Pet'r's Mot at 2. But the
petitioner fails to raise this claim on direct review, and has
asserted no justification for her failure to do so. To the
contrary, the petitioner admits awareness of this issue at
sentencing, prior to filing her appeal. Id. (stating that "the
defendant moved into the plea agreement with the government . . .
but during sentencing was shunned upon with an unexplanitory
[sic] intent, resulting in the defendant being sentenced under
the term Crack").
D. The Court Denies the Petitioner's Claim of Ineffective
Assistance of Counsel
As a preliminary matter, the government argues that the
petitioner is procedurally barred from raising this issue because
she failed to do so on direct review. Resp't's Opp'n at 3-5. The
government is incorrect. Ineffective assistance of counsel claims
are not waived if not raised during ...