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August 17, 2005.

DEBRA WALDROP, Petitioner,

The opinion of the court was delivered by: RICARDO URBINA, District Judge




  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 motion.


  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 Evidence
  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, 622 (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 ...

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