The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
[Motion filed on December 19, 2007]
MEMORANDUM AND ORDER DENYING RESPONDENT'S MOTION UNDER 28 U.S.C. SECTION 2255 TO VACATE OR SET ASIDE CONVICTION
I. SUMMARY OF PROCEEDINGS
On December 19, 2007, pro se Petitioner Benjamin Jordan Beal ("Petitioner") filed a "Motion for Reduction of Sentence by an Inmate in Federal Custody" pursuant to 28 U.S.C. § 2255. On May 19, 2008, Respondent United States of America ("Respondent") filed "Opposition to Defendant's Motion Filed Pursuant to 28 U.S.C. § 2255" ("Opposition").
On June 3, 2004, a federal grand jury returned a nine-count First Superseding Indictment ("Indictment") against Petitioner and twenty other co-defendants. The Indictment named Petitioner in Counts One, Three, and Six. Count One charged Petitioner and other co-defendants with conspiracy to manufacture and distribute 100 grams or more of phencyclidine ("PCP") in violation of 21 U.S.C. §§ 846, 841(a), and 841(b)(1)(A). Count Three charged Petitioner and other co-defendants with aiding and abetting and attempting to manufacture 100 grams or more of PCP in violation of 21 U.S.C. §§ 846 and 841(a). Count Six charged only Petitioner with possession of a submachine gun in violation of 26 U.S.C. § 5861.
On June 6, 2005, Petitioner pled guilty to Counts One and Six pursuant to a written plea agreement. On November 14, 2005, the Court sentenced Petitioner to 87 months of imprisonment on Count One and 87 months on Count Six, to be served concurrently. Petitioner appealed his sentence on November 30, 2005. The Ninth Circuit Court of Appeals denied his appeal on September 26, 2006 because Petitioner waived his appeal rights, under his plea agreement.
III. PETITIONER'S CONTENTIONS
Giving the § 2255 Motion a liberal construction, Petitioner asserts three claims: (1) he should have been held responsible only for 100 grams of actual PCP pursuant to the plea agreement based on its plain language; (2) his sentence on Count Six should have been 0 to 6 months instead of 87 months and he should not be serving his sentences on Counts One and Six concurrently; and (3) his trial and appellate counsel provided him ineffective assistance because they did not raise the aforementioned arguments at sentencing or on appeal. (See § 2255 Mot.)
Pursuant to section 2255,
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
The petitioner bears the burden of establishing any claim asserted in his § 2255 motion. To warrant relief because of constitutional error, the petitioner must show that the error was one of constitutional magnitude which had a substantial and injurious effect or influence ...