RICHARD D. BENNETT, District Judge.
The pro se Petitioner Walter Hernan Saracay-Orellana ("Petitioner") has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 36). Petitioner claims ineffective assistance of counsel, citing his attorney's failure to advocate for a reduced sentence on the basis of the disparity between Petitioner's sentence and the sentencing of similarly situated defendants in "fast-track" jurisdictions. Id. Also pending before this Court is the Government's Motion to Dismiss Petitioner's Motion (ECF No. 38). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons stated below, the Government's Motion to Dismiss (ECF No. 38) is DENIED. However, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 36) is DENIED.
Walter Hernan Saracay-Orellana ("Petitioner") pled guilty at his rearraignment on November 15, 2010 to one count of unlawful reentry into the United States, in violation of 8 U.S.C. § 1326(a). Criminal Mins. Nov. 15, 2010, ECF No. 17. He agreed to a statement of facts including details of his prior conviction, deportation, and reentry. See Plea Agreement, Attach. A, ECF No. 18.
According to this statement of facts, Petitioner entered the United States illegally sometime prior to May 24, 2002. Id. On May 24, 2002, he was convicted in the United States District Court for the Southern District of California of conspiracy to possess cocaine onboard a vessel in violation of 46 U.S.C. § 1903 (a)(c) and (j). Id. Petitioner received a sentence of thirty months imprisonment, was deported to his native country of El Salvador on August 1, 2003, and was ordered not to reenter the United States without first obtaining permission from the Attorney General or his designated successor, the Secretary of the Department of Homeland Security. Id.
At some point prior to February 5, 2009, Petitioner knowingly returned to the United States and was convicted of False Impersonation of Another in the Superior Court of California, County of Los Angeles. Id. He received a sentence of three years probation and 365 days inprisonment for this violation. Id. He then knowingly returned to the District of Maryland and was arrested on July 18, 2010 in Frederick County, Maryland by police responding to a routine call regarding a large fight. Id. At all times following February 5, 2009, Petitioner was present in the United States illegally as he did not obtain permission from the Attorney General or the Secretary of the Department of Homeland Security prior to reentering the country. Id.
Petitioner appeared before this Court on November 15, 2010 and pled guilty to unlawful reentry. Rearraignment, ECF No. 17. Sentencing was set for February 8, 2011 and Petitioner's counsel filed a memorandum arguing for a downward variance, citing the particulars of Petitioner's situation. Sentencing Mem., ECF No. 22. On February 8, 2011, Petitioner was sentenced to a prison term of forty-eight months with two years supervised release and was ordered to surrender to a duly authorized immigration official for deportation in accordance with established procedure. J., ECF No. 24.
On February 16, 2011, Petitioner filed a notice of appeal to the United States Court of Appeals for the Fourth Circuit. Notice of Appeal, ECF No. 26. On August 23, 2011, the Fourth Circuit issued a Judgment dismissing Petitioner's appeal (ECF No. 34) and filed a formal Mandate of its ruling on September 14, 2011 (ECF No. 35). Petitioner did not petition the Supreme Court of the United States for a writ of certiorari. Pending before this Court are Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 36) and the Government's Motion to Dismiss Petitioner's Motion (ECF No. 38).
STANDARD OF REVIEW
Documents filed pro se are "liberally construed" and are "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007)(citation omitted). In order to establish a claim for ineffective assistance of counsel, Petitioner must prove both elements of the test set forth by the Supreme Court in Strickland v. Washinton, 466 U.S. 668, 671 (1984). First, Petitioner must show that his counsel's performance was so deficient as to fall below an "objective standard of reasonableness." Id. at 688. In assessing whether counsel's performance was unconstitutionally deficient, courts adopt a "strong presumption" that counsel's actions fall within the "wide range of reasonable professional assistance." Id. at 689. Second, Petitioner must show that his counsel's performance was so prejudicial as to "deprive the defendant of a fair trial." Id. at 687. In order to establish this level of prejudice, Petitioner must demonstrate that there is a "reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different." Id. at 694. Satisfying either of the two parts of the test alone is not sufficient; rather, the petitioner must meet both prongs of the Strickland test in order to be entitled to relief. See id. at 687.
I. Timeliness of Petitioner's Motion to Vacate
The Government argues that Petitioner Walter Hernan Saracay-Orellana's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence should be dismissed as untimely. Specifically, the Government argues that the Motion was filed on December 12, ...