The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Pending is Petitioner's Motion to Vacate under 28 U.S.C. § 2255 (Doc. No. 51). The Prosecution has responded (Doc. No. 52).
Petitioner was charged in a one-count indictment with being a felon in possession of firearms, a violation of 18 U.S.C. § 922(g)(1) and being an armed career criminal under 18 U.S.C. § 924(e). On January 27, 2005, Petitioner pled guilty to Count One of the indictment, and, on May 4, 2005, was sentenced to 188 months in prison. Petitioner did not appeal his case.*fn1
Petitioner asserts that he "pled guilty to possession of a firearm by a felon but didn't plea to the Armed Career Criminal."*fn2 Petitioner also asserts an ineffective assistance of counsel claim because his "attorney, after stating at sentencing she would be filing a direct appeal, didn't even though [Petitioner] asked her to."*fn3
Petitioner asserts that the Armed Career Criminal enhancement should be dismissed because he "pled to count 1, felon in possession of a firearm, not armed career criminal."*fn4 He also contends that his attorney informed him he "was only facing time for the gun (5 years)."
During the January 27, 2005 plea hearing, the following discussion took place: MR. WHITE: Your Honor, that is right, except that Count -- there is no Count 2, but there is a statutory sentencing enhancement, which is Section 924(e). It's not charged as a separate count because it's not its own offense; it's a statutory enhancement. And because of that statutory enhancement, assuming he qualifies for what Section 924(e) says, it's a mandatory minimum of not less than 15 years in the Bureau of Prisons. It's the government's position that those -- that he's been -- that those apply in this case.
THE COURT: Ms. Peters, do y'all understand that's what the government contends?
MS. PETERS: We understand that's what the government contends, your Honor, and it is our position that he possibly is not a career criminal, armed career criminal, and it is our intent, from talking with Mr. White, he understands our intent is to plead to the felon in possession, leave that open as far as whether he, in fact, is an armed career criminal, and that will be dealt with at sentencing. We understand if he is an armed career criminal, he is looking at the automatic 15-year sentence. If he is not, we go by what is listed in the statute, not more than ten years.
THE COURT: All right. Mr. Insley, do you understand what Mr. White and your lawyer, Ms. Peters, have just said about the armed career criminal?
THE COURT: And it may be that I'll find that you are that, and if so, it's a minimum of 15 ...