SUE E. MYERSCOUGH, District Judge.
This cause is before the Court on Petitioner Bryant Hampton's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (§ 2255 Motion) (d/e 1). Petitioner's § 2255 Motion is DENIED because Petitioner has failed to establish his claims for ineffective assistance of defense counsel and no de process violations occurred.
On November 18, 2009, Petitioner along with Eric Montgomery and Kyle Wilson, was charged by indictment with one count of Conspiracy to Distribute at Least 500 Grams of Cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846 and one count of Possession of at Least 500 Grams of Cocaine with Intent to Distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. See Case No. 09-30108, d/e 14 at 1.
On January 21, 2010 the Government filed a Notice of Prior Felony Drug Conviction pursuant to 21 U.S.C. § 851 with respect to Petitioner's prior conviction for unlawful possession of marijuana in Tulsa County, Oklahoma. See Case No. 09-30108, d/e 20.
On January 22, 2010, Petitioner, represented by defense counsel Mr. Dan Fultz, pleaded guilty to both counts of the Indictment. See Case No. 09-30108, Minute Entry for 1/22/2010. Petitioner seemed confused for a moment during his plea hearing when Judge Scott called Petitioner's plea an "open plea." The relevant portion of Petitioner's plea hearing went as follows:
The Court: Your attorney has indicated that this is an open plea. And that means that there's no agreement that the Government is going to recommend a specific sentence or that I will give you a specific sentence. I will decide your sentence, but after we have a separate background investigation of your history and a separate hearing where both sides can present evidence and make recommendations.
Petitioner: Yes, your Honor.
The Court: Are you pleading guilty with that understanding?
Defense Counsel: Your Honor, I think one of the points of confusion is that I have advised Mr. Hampton per the statute he's looking at a minimum ten years. And he is anticipating a 5K1.1 departure. So he's not sure what his sentence is, but I think he's confused because I have told him it will start at ten years.
The Court: That is correct, assuming you have a prior felony conviction. But what I'm saying is there is no plea agreement that binds the Government to make a certain recommendation or the Court to give you a certain sentence, a certain specific sentence.
Petitioner: Yes, your Honor.
The Court: Okay. You look confused to me. So why don't you tell me what is bothering you.
Petitioner: Nothing, your Honor. I just didn't really understand about the open. I understand. I understand, your Honor. He explained-my lawyer explained it to me, but I understand now.
Plea Tr. at 4-5.
The Court also asked Petitioner about whether the Government had accurately alleged a prior felony conviction:
The Court: All right. Let me explain to you then the maximum possible penalties that you could receive if you plead guilty or if you were found guilty at trial.
First of all, the Government has filed a document claiming that you previously were convicted of a felony drug offense in Tulsa County, Oklahoma; the offense of unlawful possession of marijuana, which was a second offense, and sentenced to three years in prison for that felony offense.
Do you agree that's accurate, that you have that prior conviction?
Petitioner: Yes, ma'am.
During the plea hearing, the Court also explained how the prior felony would affect Petitioner's sentence:
The Court: Okay, [the prior felony drug conviction] affects the range of penalty here. The fact that you have that conviction means that for Count 1, the conspiracy charge, the penalty would be at least ten years in prison and it could range up to the rest of your life.
When you get out of prison, if you got out of prison, there would be a term of supervised release that would last at least eight years, and it ...