LINDA R. READE, Chief District Judge.
The matter before the court is Josiah Williams's ("the movant") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 ("motion") (civil docket no. 1). The movant filed the motion on October 3, 2012. On February 26, 2013, the court directed the government to brief the claims that the movant included in the motion. See February 26, 2013 Order (civil docket no. 2). On March 6, 2013, Jane Kelly, the movant's attorney at his arraignment, filed an affidavit stating that because she represented the movant only at his arraignment, she has no knowledge about his ineffective assistance of counsel claim with respect to his plea hearing. Kelly Affidavit (civil docket no. 3). On April 24, 2013, Eric Tindal filed an affidavit. Tindal Affidavit (civil docket no. 4). On April 26, 2013, the government filed a resistance to the motion (civil docket no. 5). On May 9, 2013, the movant filed a reply to the resistance (civil docket no. 6).
A district court is given discretion in determining whether to hold an evidentiary hearing on a motion under 28 U.S.C. § 2255. See United States v. Oldham , 787 F.2d 454, 457 (8th Cir. 1986). In exercising that discretion, the district court must determine whether the alleged facts, if true, entitle the movant to relief. See Payne v. United States , 78 F.3d 343, 347 (8th Cir. 1996). "Accordingly, [a district court may summarily dismiss a motion brought under 28 U.S.C. § 2255 without an evidentiary hearing] if (1) the... allegations, accepted as true, would not entitle the [movant] to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Engelen v. United States , 68 F.3d 238, 240-41 (8th Cir. 1995) (citations omitted); see also Delgado v. United States , 162 F.3d 981, 983 (8th Cir. 1998) (stating that an evidentiary hearing is unnecessary where allegations, even if true, do not warrant relief or allegations cannot be accepted as true because they are contradicted by the record or lack factual evidence and rely on conclusive statements); United States v. Hester , 489 F.2d 48, 50 (8th Cir. 1973) (stating that no evidentiary hearing is necessary where the files and records of the case demonstrate that relief is unavailable or where the motion is based on a question of law). Stated differently, the court can dismiss a 28 U.S.C. § 2255 motion without a hearing where "the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); accord Standing Bear v. United States , 68 F.3d 271, 272 (8th Cir. 1995) (per curiam).
The court concludes that it is able to resolve the movant's claims from the record. See Rogers v. United States , 1 F.3d 697, 699 (8th Cir. 1993) (holding that "[a]ll of the information that the court needed to make its decision with regard to [the movant's] claims was included in the record" and, therefore, the court "was not required to hold an evidentiary hearing" (citing Rule Governing Section 2255 Proceedings 8(a) and United States v. Raddatz , 447 U.S. 667, 674 (1980))). The evidence of record conclusively demonstrates that the movant is not entitled to the relief sought. Specifically, it indicates that the movant's assertions fail because counsel represented the movant in a manner that comports with the requirements of the Sixth Amendment. As such, the court finds no need for an evidentiary hearing.
With respect to the merits of the movant's claims, the court deems it appropriate to deny the motion for the reasons stated in the government's resistance. The government's brief adequately sets forth the law that is applicable to the facts in the movant's case. Specifically, the government correctly concluded that the movant's ineffective assistance of counsel claims are without merit.
Moreover, the court thoroughly reviewed the record and finds that dismissing the movant's claims comports with the Constitution, results in no "miscarriage of justice" and is consistent with the "rudimentary demands of fair procedure." Hill v. United States , 368 U.S. 424, 428 (1962); see also United States v. Apfel , 97 F.3d 1074, 1076 (8th Cir. 1996) ("Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." (citing Poor Thunder v. United States , 810 F.2d 817, 821 (8th Cir. 1987))). The movant's claims do not justify relief.
Further, the court appropriately sentenced the movant. The court's application of the advisory sentencing guidelines violates no constitutional right. See United States v. Villareal-Amarillas , 562 F.3d 892, 898 (8th Cir. 2009) (observing that a sentencing judge is only constrained by the statutory maximum and minimum for an offense and the factors included in 18 U.S.C. § 3553(a)); United States v. Garcia-Gonon , 433 F.3d 587, 593 (8th Cir. 2006) (finding challenges based on the Fifth Amendment and the Sixth Amendment to be unavailing because sentence-enhancing facts need only be found by a preponderance of the evidence and uncharged relevant conduct may be considered so long as the sentence does not exceed the statutory maximum for the offense); cf. Alleyne v. United States , 133 S.Ct. 2151, 2158 (2013) (requiring a jury to find facts that increase a mandatory minimum sentence beyond a reasonable doubt).
In addition, the court concludes that counsel's conduct fell within a wide range of reasonable professional assistance, Strickland v. Washington , 466 U.S. 668, 689 (1984), and counsel's performance did not prejudice the movant's defense, id . at 692-94. Thus, the movant has failed to establish an ineffective assistance of counsel claim. See id. at 687 (holding that, to establish an ineffective assistance of counsel claim, the movant must first "show that counsel's performance was deficient" and then "show that the deficient performance prejudiced the defense"); see also Morelos v. United States , 709 F.3d 1246, 1249-50 (8th Cir. 2013) ("To succeed on a claim of ineffective assistance of trial counsel, a defendant must prove 1) [the defendant's] attorney's performance was... deficient... and 2) [the defendant] suffered such prejudice stemming from the deficient performance there is a reasonable probability the proceeding would have had a different result." (citing United States v. Taylor , 258 F.3d 815, 818 (8th Cir. 2001))).
The movant attempted to plead guilty to Count I of the Indictment (criminal docket no. 1) on September 12, 2005. See September 12, 2005 Minute Entry (criminal docket no. 15); Transcript of Plea Hearing (criminal docket no. 76-1). The Indictment charged the movant with distributing and aiding and abetting the distribution of crack cocaine within one thousand feet of a school. The court decided that the movant did not admit the elements of the offense at the plea hearing and thus the movant did not provide a factual basis for the guilty plea. The Eighth Circuit Court of Appeals agreed. United States v. Williams , 557 F.3d 556, 560 (8th Cir. 2009). The movant proceeded to trial, where the movant testified on his own behalf, and the jury convicted him. See Jury Verdict (criminal docket no. 36).
In the motion and brief in support of the motion, the movant makes several specific claims to support his contention that the court should vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. First, the movant claims that Tindal was ineffective when he failed to establish a factual basis sufficient for the court to accept the movant's guilty plea at the change of plea hearing. The relevant exchange at the change of plea hearing was:
THE COURT: Let's turn our attention, then, to whether you are guilty. Tell me in your own words what you did on October 3, 2003, that makes you guilty of this offense.
THE DEFENDANT: I received a phone call from Barb Sherrette (phonetic) asking about some marijuana, and I agreed to meet and send it to him, and I was there when the crack cocaine was sold also.
THE COURT: And did you participate in that sale?
THE DEFENDANT: Yeah, part of. Aiding and ...