United States District Court, D. Maryland
MEMORANDUM AND ORDER
MARVIN J. GARBIS UNITED STATES DISTRICT JUDGE
The Court has before it Petitioner's Motion to Vacate, Set Aside, or Correct Sentence [Document 50] and Petitioner's Petition for Leave to Amend [Document 71]. The Court finds that a hearing is unnecessary.
On December 19, 2012, Petitioner was convicted on a plea of guilty to possession with intent to distribute heroin. The plea agreement, under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, included the parties' stipulation that the appropriate sentence was 120 months incarceration concurrent with any sentence imposed for violation of supervised release conditions in MJG-99-0435. See [Document 38]. On December 19, 2012, the Court imposed the sentence that the parties had stipulated was the appropriate disposition of the case. See [Document 40].
By the instant Motion, timely filed, pursuant to 28 U.S.C. § 2255, Petitioner seeks to have his conviction and sentence vacated.
II. GROUNDS ASSERTED
Petitioner asserts the following grounds for relief:
1. He was denied the effective assistance of counsel due to counsel's failure to:
a. Seek dismissal based on the alleged inadequacy of the Superseding Indictment due to the absence of a specified drug amount; and
b. Obtain a contemporaneous Presentence Report prior to sentencing.
2. The Court did not utilize a contemporaneous Presentence Report and "did not independently verify the information in the [Presentence Report that had been prepared in 2000] himself or with the defendant prior to Sentencing."
[Document 50] at 5.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prevail on a claim that counsel's representation violated his Sixth Amendment right to effective assistance of counsel, Petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness, " and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome [of the proceedings]." Id. at 694.
Petitioner bases his ineffective assistance claim on counsel's failure to:
a. Seek dismissal based on the alleged inadequacy of the Superseding Indictment due to the absence of a specified drug amount.
b. Obtain a Presentence Report.
A. Adequacy of the Superseding Indictment.
Petitioner pleaded guilty to Count Two of the Superseding Indictment, which states:
On or about March 2, 2012, in the District of Maryland, the defendant,
KEITH DONNELL MASSENBERG,
did knowingly, intentionally and unlawfully possess with intent to distribute a quantity of a mixture or substance containing a detectable amount of heroin, a Schedule I ...