The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
DENYINGTHE PETITIONER'S MOTIONTO VACATE,SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28U.S.C.§2255
On February 12, 2002, the petitioner, Tyrone Winchester, pled guilty to unlawful distribution of heroin, in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(c). The court sentenced the petitioner to 144 months of incarceration on June 3, 2002. On July 20, 2004, the petitioner filed the instant motion for relief under 28 U.S.C. § 2255, arguing that his sentence violates his Sixth Amendment right to a trial by jury as understood in the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004). In particular, the petitioner asserts that the court impermissibly enhanced his sentence on the basis of a prior conviction. Because the petitioner entered his guilty plea under Federal Rule of Criminal Procedure 11(c)(1)(c) and because the Supreme Court's holding in Blakely does not apply retroactively to§ 2255 proceedings, the court denies the petitioner's motion.
The petitioner plead guilty to one count of distribution or possession with intent to distribute two kilograms of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c). Plea Agreement (Feb. 11, 2002) ("Plea Agreement") ¶ 1. In the plea agreement, the petitioner acknowledged that because he had two previous convictions for a controlled substance offense, the career offender provisions applied, resulting in a Guidelines sentencing range of 262 to 327 months. Id. The petitioner entered his guilty plea pursuant to a written plea agreement within the scope of Rule 11(e)(1)(c) (now Rule 11(c)(1)(c)). According to the plea agreement, the petitioner also acknowledged that the maximum statutory term of imprisonment in connection with this charge was 30 years. Id. ¶ 1. The petitioner and the government agreed that a sentence of 144 months incarceration was appropriate. Id. ¶ 3.
On June 3, 2002, the court sentenced the petitioner to 144 months of incarceration. Order (June 3, 2002) at 1. The petitioner did not appeal his sentence. Subsequently, on March 23, 2004, the Supreme Court decided Blakely v. Washington, ruling that a sentence violates a petitioner's Sixth Amendment right to a jury trial when the facts supporting the sentence were neither admitted by a defendant nor found by a jury. 542 U.S. at 303-04. Approximately four months later, the petitioner filed the instant motion, seeking reconsideration of his sentence in light of Blakely. Pet'r's Mot. at 5. The court now turns to the petitioner's motion.
A. Legal Standard for a Motion Under § 2255
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. at 187).
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). 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).
When a petitioner fails to raise an argument on direct appeal, he may raise his claim collaterally (that is, pursuant to § 2255) only if he can show cause and prejudice. Massaro v. United States, 538 U.S. 500, 504 (2003). 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 ineffective assistance of counsel may provide cause and prejudice for the ...