The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge
Before the Court is a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. For the reasons stated below, the Motion is DENIED.
On July 23, 2003, Petitioner, Renee Argo, was charged by indictment with the following crimes: (1) Conspiracy to Manufacture Methamphetamine, in violation of 21 U.S.C. § 846; (2) Maintaining a Place for Manufacturing Methamphetamine, in violation of 21 U.S.C. §§ 856(a)(1) and (b); and (3) Endangering Human Life While Manufacturing Methamphetamine, in violation of 21 U.S.C. § 808. On January 6, 2004, Petitioner entered into a written plea agreement with the Government, in which Petitioner pleaded guilty to all charges in the indictment. On April 8, 2004, Petitioner was sentenced to 292 months of imprisonment and five years of supervised release. Judgment was entered on April 16, 2004. Petitioner did not appeal. On June 8, 2005, the Government filed a Motion pursuant to Federal Rule of Criminal Procedure 35(b). On August 5, 2005, the Court granted that motion and, accordingly, Petitioner's sentence was reduced to 180 months. An Amended Judgment reflecting the downward adjustment in sentencing was entered on August 18, 2005.
On April 2, 2007, the Court received a letter from Petitioner, which the Court construed as a section 2255 motion (Doc. 1). In this letter, Petitioner alleged that "[her trial] attorney on this case, Steve Hanna, previously represented Richard D. Lear[,] who provided information against [her]." Petitioner stated that she believed this to be a conflict of interest. Upon receipt of the letter, the Court appointed Mr. G. Trent Marquis as counsel for Petitioner (Doc. 2). In addition, the Court subsequently directed Petitioner to file an amended motion to clarify and substantiate her claims. (TEXT ORDER of May 29, 2007). Before Petitioner filed an amended motion, her appointed counsel moved to withdraw from the case on the ground that, after diligent investigation and research, he found Petitioner's claims for relief to be without merit. The Court granted counsel's motion to withdraw on February 7, 2008 (Doc. 14).
Acting pro se, Petitioner filed an Amended Section 2255 Motion ("Amended Motion") on February 21, 2008 (Doc. 15). The Amended Motion included, among other claims, an ineffective assistance of counsel claim relating to Mr. Hanna's alleged conflict of interest while representing Petitioner as trial counsel. Subsequently, Petitioner submitted numerous other filings requesting clarification on various maters and asking for updates on the status of her case. On March 4, 2008, after reviewing the Amended Motion, the Court issued an order directing the parties to submit briefing on the issue of the Amended Motion's timeliness in light of the limitation period set forth in 28 U.S.C. § 2255(f). On May 13, 2008, Respondent filed a motion to dismiss in which Respondent argued that Petitioner's section 2255 was untimely (Doc. 19). Petitioner responded on June 16, 2008 (Doc. 21). On July 15, 2008, the Court ordered additional briefing on the timeliness issue and directed the parties to submit supplemental briefs on or before July 31, 2008 (Doc. 23). On July 31, 2008, Respondent submitted its supplemental brief in support of its motion to dismiss (Doc. 24). Petitioner did not submit a supplemental brief by the deadline and has not, to date, complied with the Court's July 15, 2008 Order.
In order for a court to grant relief under 28 U.S.C. § 2255, a petitioner must show that her "sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A one-year period of limitation applies to the filing of a section 2255 motion. For purposes of this case, the limitation period runs from the latest of: (1) the date on which the judgment of conviction becomes final; or (4) the date on which the facts supporting the claim presented could have been discovered through the exercise of due diligence.*fn1 See 28 U.S.C. § 2255(f).
One ground for relief in a section 2255 motion is ineffective assistance of counsel. Criminal defendants are guaranteed, by the Sixth Amendment, the right to representation by a competent attorney. In order to substantiate a claim of ineffective assistance of counsel, a habeas petitioner must show (1) that her trial counsel's representation was so poor as to fall below a threshold of objective reasonableness and (2) that, but for her counsel's failure, the result of her criminal proceedings would have probably been different. Strickland v. Washington, 466 U.S. 668 (1984).
The Amended Motion includes the following claims:
1. Petitioner's trial counsel, Mr. Hanna, was constitutionally ineffective in representing Petitioner in the underlying criminal case. Petitioner claims that Hanna knowingly represented Petitioner and a person named Richard D. Lear at the same time. According to Petitioner, Lear was a federal informant who provided information about her. Petitioner claims that she was not aware of this "conflict of interest" until she was notified by Lear's family at some point after her sentencing. Petitioner does not give a date as to when she was so notified. Petitioner goes on to claim that, had she known that Hanna represented Lear, she would have found a different attorney to represent her.
2. Petitioner is due a reduction in sentence for providing information about an individual, which information assisted with a successful prosecution of this individual.
3. The sentencing court improperly enhanced Petitioner's sentence based on prior drug felonies for which ...