DONALD E. O'BRIEN, Senior District Judge.
This matter is before this Court on Petitioner, Gary Lee Brooks' [hereinafter Mr. Brooks], 28 U.S.C § 2255 Petition, Docket No. 1, and Supplemental Motion to Vacate, Set Aside, or Correct Sentence, Docket No. 15. The parties appeared for hearing on April 22, 2013. After listening to the parties' arguments, the Court took the matter under consideration and now enters the following.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 19, 2009, a Grand Jury returned a three-count Indictment against Mr. Brooks. The Grand Jury charged Mr. Brooks with (Count I) conspiracy to distribute and possess with the intent to distribute: (a) 50 grams or more of actual (pure) methamphetamine, (Count II) possession with intent to distribute and aid and abet the possession with the intent to distribute 50 grams or more of methamphetamine mixture containing 5 grams or more of actual (pure) methamphetamine within 1, 000 feet of a protected location, and (Count III) forfeiture of property and proceeds from Count I and Count II.
Mr. Brooks was initially represented by Public Defender Michael Smart. Attorney David Eastman took over Mr. Brooks' representation on April 24, 2009. On April 5, 2010, Mr. Brooks appeared before this Court and plead guilty pursuant to N. Carolina v. Alford , 400 U.S. 25 (1970), to Counts I and II of the Indictment. Because Mr. Brooks plead to 50 grams of actual (pure) methamphetamine, the statutory mandatory minimum was 120 months as set forth in 21 U.S.C. § 841(b)(1)(A)(viii). This Court sentenced Mr. Brooks to the statutory minimum, 120 months' imprisonment on Count One, and 120 months' imprisonment on Count Two of the Indictment, to be served concurrently, and ten years supervised release on Count One and eight years supervised release on Count Two of the Indictment, to be served concurrently.
Mr. Brooks appealed his case to the 8th Circuit Court of Appeals. Mr. Brooks' appeal appears to have raised one issue. The 8th Circuit stated, "[Mr. Brooks' appellate counsel] has filed a brief under Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising the argument that the government acted in bad faith in refusing to move under 18 U.S.C. § 3553(e) for a sentence reduction based on substantial assistance." United States v. Brooks, 415 F.Appx. 731 (8th Cir. 2011). The 8th Circuit denied Mr. Brooks' appeal, stating "[t]he challenge to the sentence is unavailing: there is no indication in the record that the government's decision not to move for a sentence reduction was improper... [h]aving independently reviewed the record under Penson v. Ohio , 488 U.S. 75, 80 (1988), we find no nonfrivolous issues. Accordingly, we affirm." Brooks, 415 F.Appx. at 731.
On October 31, 2011, Mr. Brooks filed the present pro se Petition for habeas relief. After considering Mr. Brooks' pro se filing, this Court entered an Initial Review Order on the same date. In that Initial Review Order, the Court sua sponte appointed Mr. Brooks counsel. Attorney Jay Denne was appointed to represent Mr. Brooks. Shortly after being appointed, Mr. Denne filed a Motion to Withdraw, stating he had discovered a conflict of interest when reviewing discovery in Mr. Brooks' case. The Court granted his Motion to Withdraw and appointed Mr. Douglas Roehrich as Mr. Brooks' new attorney. Mr. Roehrich filed a Supplemental Petition and Brief on March 12, 2012.
28 U.S.C. § 2255(a) provides,
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 law 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.
Mr. Brooks' initial pro se Petition, Docket No. 1, raises several issues. The Government's brief sets out Mr. Brooks' pro se issues as: (I) the sentencing court erred by imposing a 10 year mandatory minimum on Count One of the Indictment; (II) Insufficient evidence existed to convict Movant under Title 21, United States Code, Section 860 and Title 18, United States Code, Section 2; (III) the government lacked subject matter jurisdiction to prosecute Movant under Title 21, United States Code, Section 846 in Count Two of the Indictment; (IV) Movant's sentence was illegal pursuant to the double jeopardy clause; (V) the Court erred in the application of sentencing guidelines and did not have subject matter jurisdiction to impose a sentence under Title 21, United States Code, Section 860; (VI) the government lacked subject matter jurisdiction to prosecute Movant on Count One of the Indictment; and (VII) Title 21, United States Code, Section 861(a) does not grant jurisdiction of the subject matter unless the evidence supports the statutory language and that Title 21, United States Code, Sections 846 and 860(a) and Title 18, United States Code, Section 2 are "convoluted" and "mind bogling (sic). (See Docket No. 1, p. 14-15.) After laying out the issues individually, Mr. Brooks asserts that each also shows ineffective assistance of counsel.
Mr. Brooks' appointed attorney filed a Supplemental Petition and Brief in this case which raises and briefs one issue, ineffective assistance of counsel related to Mr. Brooks' guilty ...