The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Defendant Rickey Lamont Talley filed a motion under 28 U.S.C. § 2255 to vacate his plea, convictions, and sentence arguing that his counsel provided ineffective assistance by guaranteeing that the sentence would be at or below the statutory minimum, and that he was denied due process by being sentenced under sentencing guidelines for crack cocaine offenses which were unduly harsh and have since been lowered. Because Talley's § 2255 motion was not timely filed, the ineffective assistance of counsel claim is conclusory and unsupported, and the amended guidelines for crack cocaine offenses do not affect Talley's offense level, he is not entitled to relief.
Talley was charged with conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(iii) and conspiracy to distribute and possess with intent to distribute 1,000 grams or more of phencyclidine ("PCP"), in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(iv). Talley pled guilty to both counts. (Plea Tr. at 46-47.)
The factual proffer that Talley signed and agreed to under oath (id. at 41) sets forth the following facts. Talley's co-conspirator, Thomas Jennings, III, traveled from Maryland to New York once or twice per month from January 1999 to October 2003 to obtain between twenty-eight to thirty-two ounces of PCP. Talley obtained approximately one to two ounces of cocaine base every two to three months from multiple sources. Talley distributed the drugs to his co-conspirators. With the assistance of a government cooperator, the police completed several controlled drug purchases from Talley. The police searched Talley's residence and found Jennings present bearing weapons, PCP, and cash. The police found several weapons, including a .9mm pistol and a .32 caliber revolver, a large sum of cash, and PCP in Talley's residence, vehicle, and garage. (Id. at 37-42; United States v. Talley, Criminal Action No. 03-511 (RWR), Elements of Offense & Proffer of Evidence, Docket Entry 18, Nov. 21, 2003.) Talley's total offense level under the 2005 U.S. Sentencing Guidelines ("U.S.S.G.") manual was 37 and his criminal history category was I, which resulted in a guideline range of 210 to 262 months. At sentencing, though, after the sentencing factors under 18 U.S.C. § 3553(a) were considered, a downward departure reduced the total offense level to 35, yielding a guideline range of 168 to 210 months. Talley was sentenced to 168 months on each count to run concurrently. He did not file an appeal.
Talley claims that his attorney, G. Allen Dale, was ineffective because he erroneously assured Talley "that [Talley] would receive, at the worst, the statutory minimum prison term for his offenses of conviction[,]" and argues that he was sentenced under "unduly harsh Guidelines concerning crack cocaine that have since been amended." (Pet'r Mot. to Vacate, Correct, or Set Aside the Pet'r Sentence Pursuant to 28 U.S.C. § 2255 ("Pet'r Mot.") at 1; see also Pet'r Mem. of Law in Supp. of Mot. ("Pet'r Mem.") at 2.) Talley seeks to "vacate the plea, convictions, and subsequent sentence" and also requests an evidentiary hearing. (Pet'r Mot. at 1.)
In a § 2255 motion, the petitioner can move to "vacate, set aside, or correct the sentence" if the sentence was "imposed in violation of the Constitution or laws of the United States[.]" 28 U.S.C. § 2255(a). The petitioner bears the burden of proving the violation by a preponderance of the evidence. United States v. Pollard, 602 F. Supp. 2d 165, 168 (D.D.C. 2009). An evidentiary hearing does not need to be held when the "motion and the files and the records of the case conclusively show the prisoner is entitled to no relief." United States v. Horne, No. 99-3080, 2000 WL 60246, at *2 (D.C. Cir. Jan. 4, 2000) (noting that it is within the court's discretion whether to hold a hearing when it is the same court that presided over the petitioner's criminal proceedings).
I. STATUTE OF LIMITATIONS
A § 2255 motion has a one-year statute of limitations. 28 U.S.C. § 2255(f). The limitations period runs from the latest of "(1) the date on which the judgment of conviction becomes final; [or] . . . (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Id. Because Talley did not file an appeal, his conviction became final within ten days after the entry of the judgment. United States v. Booker, 564 F. Supp. 2d 7, 12 (D.D.C. 2008) (stating that "[i]f a criminal defendant does not appeal, the judgment of conviction becomes final when the time period for filing an appeal expires, ten days after entry of the judgment"); United States v. Shelton, 539 F. Supp. 2d 259, 266-67 (D.D.C. 2008) (stating that "[s]section 2255(f)(1)'s reference to 'the date on which the judgment of conviction becomes final,' denotes the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" (citing Clay v. United States, 537 U.S. 522, 527-31 (2003))).
Here, judgment was entered on October 5, 2006 and the deadline for filing an appeal was October 20, 2006. One year from October 20, 2006, which was October 20, 2007, was the deadline for Talley's § 2255 motion. See 28 U.S.C. § 2255(f)(1). Talley filed his § 2255 motion untimely on November 13, 2007.
Talley argues that the one-year deadline did not start to run until November 1, 2007 under § 2255(f)(3), because that was the effective date of the sentencing guidelines that reduced the offense levels for crimes involving crack cocaine. However, a right under § 2255(f)(3) must have been "newly recognized by the Supreme Court." 28 U.S.C. § 2255(f)(3). In Dodd v. United States, 545 U.S. 353 (2005), the Supreme Court emphasized that under § 2255(f)(3), "a federal prisoner seeking to assert that [new] right will have one year from this Court's decision within which to file his § 2255 motion." Id. at 358-59 (emphasis added). Dodd further stated that § 2255(f)(3)'s provision that starts the limitations period on "'the date on which the right asserted was initially recognized by the Supreme Court' . . . does not apply at all if the conditions in the second clause -the right 'has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review' -have not been satisfied." Id. at 358 (quoting 28 U.S.C. § 2255); see also United States v. Anderson, Criminal Action No. 89-160-01 (TFH), 2006 WL 751310, at *2 n.1 (D.D.C. Mar. 20, 2006) (stating that "[o]nly the Supreme Court can make a rule retroactive for the purposes of § 2255"). Talley does not offer any support for the proposition that when the U.S. Sentencing Commission lowers an offense level, that constitutes a right newly recognized by the Supreme Court under § 2255(f)(3). Thus, because the limitations period is triggered by § 2255(f)(1) and not § 2255(f)(3), and because the deadline for Talley's § 2255 motion was October 20, 2007, or one year from "the date on which the judgment of conviction becomes final[,]" Talley's § 2255 motion is untimely. See 28 U.S.C. § 2255(f)(1).
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Even if the motion were timely, Talley is entitled to no relief. In order to prove ineffective assistance of his counsel, Talley must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Concerning the first prong, the petitioner must show that counsel did not provide reasonable service under the "prevailing professional norms" given the circumstances. Id. at 688. Those norms can be measured by "an attorney's ethical duties, including those which require counsel to bring skill and knowledge to the case and to provide zealous representation." Best v. Drew, Criminal Action No. 01-262 (RWR), 2006 WL 2035652, at *3 (D.D.C. July 18, 2006). Counsel's performance is evaluated on the basis of how counsel would have viewed it at the time without the benefit of hindsight. Strickland, 466 U.S. at 689. As to the second prong, a reasonable probability is a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also United States v. Bowie, 198 F.3d 905, 908-09 (D.C. Cir. 1999) (noting that a reasonable probability "can be less than ...