The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
In April 2002, defendant Gregory Lancaster pleaded guilty to one count of unlawful possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On May 25, 2004, this Court sentenced defendant to 80 months of imprisonment. Defendant did not appeal his sentence.
Pending before the Court are defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 and defendant's motion for return of property. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the entire record, and for the reasons detailed below, the Court denies defendant's § 2255 motion*fn1 and grants defendant's motion for return of property.
I. Defendant's § 2255 Motion
Defendant filed a § 2255 motion in April 2005 based on three grounds: (1) ineffective assistance of counsel; (2) mathematical errors in the Presentence Investigation Report that resulted in additional criminal history points based on a misrepresentation of his prior convictions; and (3) the sentence violated the Sixth Amendment under Blakely v. Washington because the defendant did not stipulate that the crimes used to calculate his base offense level were crimes of violence.
An individual may move the court which imposed his sentence to vacate, set aside, or correct that sentence 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). The person seeking to vacate his sentence bears the burden of proving his contentions by a preponderance of the evidence. United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973); Thorpe v. United States, 445 F. Supp. 2d 18, 21 (D.D.C. 2006). Challenging a sentence under a § 2255 motion requires the petitioner to show a "good deal more than would be sufficient on a direct appeal from his sentence." United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992).
If a petitioner fails to raise a claim on direct appeal, he may raise it collaterally on a § 2255 motion only if he can (1) demonstrate good cause for his failure to raise the issue on appeal; and (2) show that the issue he is raising resulted in actual prejudice. Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 622 (1998); United States v. Kleinbart, 27 F.3d 586, 590 (D.C. Cir. 1994). Ineffective assistance of counsel may provide cause and prejudice for the procedural default. Murray v. Carrier, 477 U.S. 478, 488-89 (1986). Moreover, an ineffective assistance of counsel claim may be raised in a § 2255 motion even if it was not the subject of a direct appeal. Massaro, 538 U.S. at 504.
B. Ineffective Assistance of Counsel
In his § 2255 motion, defendant argues ineffective assistance of counsel because his attorney did not file an appeal to challenge his conviction or sentencing within the appropriate time frame. Defendant's bare allegation of ineffective assistance fails to provide grounds for relief under Strickland v. Washington, 466 U.S. 668 (1984). Defendant cannot show that his counsel disregarded an instruction to appeal or failed to consult regarding his right to appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (applying the Strickland standard to failure to appeal cases).
Along with its opposition motion, the government filed a detailed affidavit from defendant's former counsel (Archie Nichols). In his affidavit, Nichols states that he discussed defendant's right to appeal with him both before and after sentencing and explained the limited grounds upon which he could appeal following the entry of a guilty plea. Nichols also states that he explained to defendant that an appeal could result in a higher sentence and that he gave defendant ample opportunity to ask questions about an appeal. According to Nichols, defendant never asked Nichols to file an appeal even though they were in contact several times after sentencing and prior to the end of the appeals period.
Defendant responds that he never instructed Nichols not to appeal and that he trusted his attorney who told him there was nothing to appeal because the judge stayed within the range contemplated by the Sentencing Guidelines.*fn2 Defendant states that he told Nichols that he did not think that the criminal history score was calculated correctly. This is not sufficient to support a claim for ineffective assistance of counsel. Under Flores-Ortega, if there was no express instruction by the defendant to the attorney to appeal or not appeal, then a court just looks at whether counsel consulted with the defendant about an appeal. 528 U.S. at 477. In this case, defendant does not dispute that Nichols consulted with him about an appeal. If defense counsel has consulted with the defendant about an appeal, then counsel ...