OPINION and ORDER [Resolving Doc. Nos. 1 and 2]
JAMES S. GWIN, District Judge.
On March 25, 2013, pro se Petitioner Kamal Webb filed the above captioned petition for writ of habeas corpus against Warden J. Coakley and the United States of America pursuant to 28 U.S.C. § 2241. Doc. No. 1. Petitioner, who is confined at the Federal Correctional Institution in Elkton, Ohio ("FCI Elkton"), is seeking a sentence reduction, nullification of his guilty plea, remand for a new trial, and the exclusion of evidence found during searches of his vehicle and a condominium storage locker. Doc. Nos. 1, 3.
On September 16, 2004, Petitioner was indicted in the United States District Court for the Eastern District of North Carolina on four counts, as follows: possession with intent to distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count One); possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Count Two); and two counts of felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(3) (Counts Three and Four). United States v. Webb, No. 5:04-cr-00294-F-1 (E.D. N.C. ). On April 25, 2005, Petitioner pleaded guilty to Counts One and Three pursuant to a written plea agreement, within which he waived the right to challenge the calculation of his advisory sentencing guideline range in any post-conviction proceeding. Id. ; Doc. No. 1-3 at 2-3.
Prior to sentencing, a presentence investigation report ("PSR") was prepared. The PSR assigned Petitioner a criminal offense level of 40 and a criminal history category of Level IV, based on four prior misdemeanor convictions and one prior felony conviction. United States v. Webb, No. 5:04-cr-00294-F-1, Doc. No. 83 (E.D. N.C. ). On December 12, 2005, the trial court adopted the findings of the PSR and sentenced Petitioner to 360 months imprisonment on Count One and 120 months imprisonment on Count Three, to run concurrently. Id. ; id. at Doc. No. 31.
On March 22, 2008, Petitioner, through counsel, filed a Motion to Vacate or Set Aside Sentence pursuant to 28 U.S.C. § 2255 in the trial court. Id. at Doc. No. 60. He sought an evidentiary hearing, arguing ineffective assistance of counsel during plea and sentencing, and prosecutorial misconduct based on the government's failure to afford him an opportunity to earn a substantial assistance downward departure. Webb v. United States, No. 5:04-CR-294-1-F, 2008 WL 3539907 (E.D. N.C. Aug. 13, 2008). The court denied the motion on the merits.
On October 10, 2008, Petitioner appealed from the trial court's ruling on his § 2255 motion. United States v. Webb, No. 5:04-CR-294-1-F, Doc. No. 77 (E.D. N.C. ). The Fourth Circuit Court of Appeals declined to issue a certificate of appealability on September 17, 2009, finding Petitioner had failed to make "a substantial showing of the denial of a constitutional right, " and dismissed the appeal. United States v. Webb, No. 08-8192, 332 F.Appx. 873 (4th Cir. 2009) (citing 28 U.S.C. § 2255(c)(2)).
On August 11, 2011, Petitioner filed a motion for relief from final judgment in the trial court pursuant to Fed.R.Civ.P. 60(b), challenging the court's determination of his base offense level for purposes of calculating his advisory guideline sentencing range. United States v. Webb, No. 5:04-CR-294-1-F, Doc. No. 100 (E.D. N.C. ). The trial court denied the motion, noting that Petitioner had specifically waived his right to challenge the guideline calculations and that the record contained ample evidence in support of the court's coversion of monies seized from Petitioner into its drug equivalent for purposes of sentencing. Id. at Doc. No. 101.
In the petition before this Court, Petitioner raises a number of theories upon which he attacks the sentence imposed by the North Carolina district court. First, he claims the trial court erroneously relied upon a PSR containing errors and inaccuracies. Specifically, he asserts the trial court relied on a prior juvenile conviction and misdemeanor convictions that did not meet the criteria outlined in the United States Sentencing Guidelines, U.S.S.G. §§4A1.1(a), 4A1.2(c)(i)-(ii). Relying on Locklear v. Holland, 194 F.3d 1313 (6th Cir. 1999) and Blackshear v. Lockett, 411 F.Appx. 906 (7th Cir. 2011), he claims that errors in the calculation of his criminal history score have lengthened the term of his sentence; and, thus, he has established that a liberty interest is at stake which cannot be denied without due process.
Second, Petitioner claims the government breached a promise not to prosecute Count Two when it failed to object to the PSR's recommendation of a two point sentencing enhancement for possession of a firearm during a drug trafficking offense. As a result, he asserts his guilty plea was neither knowing or voluntary and was induced by fraud. Further, he asserts the sentencing court erroneously relied on this enhancement in calculating his guideline range, again lengthening his sentence.
Third, Petitioner claims he is actually innocent of the charges in Count One. He alleges that, prior to his plea, he informed his trial attorney of two witnesses who would have testified that the narcotics attributed to him in fact belonged to someone else, but his attorney refused to contact these witnesses, leaving him "with no choice other than to plead guilty." Doc. No. 3 at 3.
In his fourth and fifth grounds for relief, Petitioner claims that intervening changes in the law establish that his trial counsel was ineffective in two respects. First, Petitioner cites Missouri v. Frye, 132 S.Ct. 1399, 1408 (2012), which held that defense counsel has a duty to communicate formal plea offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. He claims his counsel failed to communicate an offer from the prosecution for twenty years incarceration and that he would have accepted this purported better offer, resulting in a shorter sentence.
Second, he claims trial counsel was deficient in failing to move to suppress evidence seized from his vehicle and a condominium storage locker. Petitioner first indicates that $6, 399 was found in his vehicle during a search incident to his arrest for a suspended/revoked license. Petitioner claims that, under Arizona v. Gant, 556 U.S. 332 (2009), the search was unconstitutional because at the time of the search he was handcuffed and further the evidence seized was unrelated to the offense for which he was arrested. He also argues that the use of a canine officer to establish probable cause for a search warrant as to his condominium storage locker was unconstitutional. In support, Petitioner cites Jardines v. Florida, 133 S.Ct. 1409 (2013), where the Supreme Court held that the use of a trained, drugsniffing dog to investigate a home's curtilage without probable cause or a warrant was an unreasonable search. Petitioner contends that since his storage locker was located in a parking deck appurtenant to his condominium, "it would probably be entitled to the same protection as the residence...." Doc. No. 1 at 11. Petitioner argues that pursuant to Gant and ...