GROCE

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BRANDON GROCE,

Petitioner,

Civil Action No. 22-4296 (ZNQ)

v.

OPINION

UNITED STATES OF AMERICA,

Respondent.

QURAISHI, District Judge

This matter comes before the Court on Petitioner’s motion to vacate his sentence brought

pursuant to 28 U.S.C. § 2255. (ECF No. 1.) Also before the Court are Petitioner’s two

supplemental motions to vacate sentence. (ECF Nos. 9-10, 19.) Following an order to answer,

the Government responded to Petitioner’s motions. (ECF Nos. 14, 29.) Petitioner also filed a

reply. (ECF No. 18.) For the following reasons, Petitioner’s motion to vacate and supplemental

motions are denied, and Petitioner is denied a certificate of appealability.

I. BACKGROUND

Petitioner’s current conviction arises out of a series of six transactions which occurred

between February and September 2019 during which Petitioner, who did not possess a valid federal

firearms license, sold firearms to federal confidential sources and undercover ATF agents. (PSR

at ¶1.) During his plea colloquy, Petitioner provided the following factual basis for his conviction:

The Court: On or about February 13, 2019, did you knowingly

possess and sell for $600 a Bryco . . . Arms Jennings nine millimeter

pistol [and] 50 rounds of nine millimeter Federal ammunition?

[Petitioner]: Yes, sir.

The Court: On or about February 28th, 2019, did you knowingly

possess and sell for $800 a Glock Model 17 nine millimeter . . . pistol

. . . and fifteen rounds of nine millimeter Spear ammunition?

[Petitioner]: Yes, sir.

The Court: On or about May 6th, 2019, did you knowingly possess

and sell for $550 a Ruger Model Super Red Hawk 44 caliber

revolver . . . and six rounds of 44 caliber Remington ammunition?

[Petitioner]: Yes, sir.

The Court: On or about August 5, 2019[,] did you knowingly

possess and sell for $700 a Smith and Wesson Model 60-14 .357

caliber revolver . . . and five rounds of .357 caliber Federal

ammunition?

[Petitioner]: Yes, sir.

The Court: On or about August 12th, 2019, did you knowingly

possess and sell for $800 a Smith and Wesson Model SD9VE . . .

nine millimeter pistol . . . and 15 rounds of nine millimeter CCI

ammunition?

[Petitioner]: Yes, sir.

The Court: On or about September 11, 2019, d[id] you knowing[ly]

possess and sell [a] GSG model GSG-522 .22 caliber rifle . . . and

approximately 50 rounds of .22 caliber ammunition?

[Petitioner]: Yes, sir.

The Court: And again on September 11, 2019, did you knowingly

possess and sell a Kel-Tec Model P3AT .380 caliber pistol with an

obliterated serial number and approximately five rounds of .380

caliber ammunition?

[Petitioner]: Hum, yes, sir.

The Court: . . . . Did you receive $1,300.00 for the items you sold

on September 11, 2019?

[Petitioner]: Yes, sir.

The Court: And did you make all these sales in Gloucester County

within the District of New Jersey?

[Petitioner]: Yes, sir.

The Court: And prior to your first sale that we talked about in

February of 2019 and continuing through the last sale in September

2019, did you know that you had previously been convicted of at

least one felony offense, meaning a crime punishable by

imprisonment for a term exceeding one year?

[Petitioner]: Yes, sir.

(Docket No. 20-675 at ECF No. 47 at 23-26.) Petitioner also confirmed in his colloquy that he

understood that the weapons had travelled in interstate commerce, that the .22 caliber rifle had an

overall length of less than 26 inches, that at least six of the firearms were operable at the time of

sale, that Petitioner did not have a federal firearms license permitting the sale of weapons to third

parties, and that he knew that it was illegal for him to possess and sell these firearms. (Id. at 26.)

On August 6, 2020, Petitioner entered into a plea agreement with the Government as to

these charges. (Docket No. 20-675 at ECF No. 29.) Pursuant to that agreement, Petitioner agreed

to plead guilty to a two-count information charging him with one count of dealing in firearms

without a license in violation of 18 U.S.C. § 922(a)(1)(A) and one count of possession of a firearm

by a convicted felon in violation of 18 U.S.C. § 922(g)(1) in exchange for the Government not to

pursue further criminal charges arising out of the series of firearms sales Petitioner made to federal

agents and informants in 2019. (Id. at 1.) In that agreement, Petitioner was informed that the §

922(a)(1)(A) charge carried a maximum sentence of five years’ imprisonment, while the §

922(g)(1) charge carried a maximum sentence of 10 years’ imprisonment, alongside appropriate

fines and fees. (Id. at 2.) Petitioner was further informed that his sentence would be left to the

sole discretion of the sentencing judge, after consideration of the advisory sentencing guidelines.

(Id.) In his plea agreement, Petitioner also agreed to a number of stipulations as to his guidelines

range. (Id. at 7-8.) These stipulations included the base offense level, an offense level increase

for the number of firearms, an offense level increase for the trafficking of firearms, and that

Petitioner would receive an appropriate guidelines reduction for acceptance of responsibility. (Id.

at 7-8.) The parties agreed that they could each present arguments as to a potential guidelines

increase based on an obliterated serial number on the Kel-Tec pistol. (Id. at 7.) Finally, the

agreement contained an appellate waiver in which Petitioner agreed not to file any appeal or

collateral attack to the extent that his sentence was imposed was within or below the range

applicable to a guidelines level of 25 – the guidelines level which would apply if Petitioner were

successful in challenging the obliterated serial number enhancement. (Id. at 8.)

Prior to entering his guilty plea, Petitioner and his counsel also prepared an application for

permission to enter a plea of guilty. (Docket No. 20-675 at ECF No. 30.) As part of that

application, Petitioner confirmed that his attorney had explained to him that he faced a maximum

sentence of 5 years on count one, and a total maximum sentence of 15 years including the 10-year

maximum applicable to count 2. (Id. at 3.) The application also confirmed that petitioner

understood the rights he was waiving by pleading guilty, and understood that his sentence would

be in the sentencing judge’s discretion following a consideration of the applicable advisory

guidelines range. (Id.at 4-6.)

Petitioner entered his guilty plea before the Court on August 6, 2020. (Docket No. 20-675

at ECF No. 47.) During his plea colloquy, the Government confirmed that, pursuant to his plea

agreement, Petitioner’s guilty plea was being made in exchange for a guarantee that the

Government would not pursue further charges against him based on his trafficking in arms, as well

as the sentencing stipulations contained in his plea agreement. (Id. at 5-6.) Petitioner thereafter

confirmed that he had had an opportunity to discuss the agreement with counsel, that he understood

the terms of the agreement, that he was pleading guilty of his own free will, hat his sentence would

be issued in the sentencing judge’s discretion after reviewing the advisory guidelines, and that the

sentence issued could be up to the statutory maximum of 15 years regardless of the recommended

range or any guesses as to potential sentencing by counsel. (Id. at 7-15.) Petitioner thereafter

confirmed the terms of his plea agreement, confirmed that he understood those terms, had

discussed those terms to his satisfaction with counsel, provided a factual basis, and entered his

guilty plea. (Id. at 16-26.)

At sentencing, defense counsel unsuccessfully opposed the guidelines enhancement for the

obliterated serial number and presented an argument in Petitioner’s defense to suggest that, but for

the desire of a government informant to secure purchases to aid in his own sentencing, Petitioner

would not have been involved in so many weapons transactions. (Docket No. 20-675 at ECF No.

48 at 1-12.) The Court rejected this argument, noting that Petitioner had not engaged in a single

sale, but rather a series of transactions involving seven different firearms and many rounds of

ammunition which Petitioner had illegally secured, and counsel had failed to show that Petitioner’s

will was overborne by the Government’s actions in this matter. (Id. at 12-18.) After considering

counsel’s arguments, Petitioner’s statement, and a number of statements from Petitioner’s family,

the Court ultimately sentenced Petitioner to 31 months imprisonment on the trafficking charge and

a consecutive 120 months on the felon in possession charge, for an aggregate prison term of 151

months. (Id. at 18-31.)

Prior to his current offense conduct, Petitioner has a long history of prior state level

criminal offenses. His prior convictions include a 2001 weapons possession offense, a number of

drug possessions convictions from 2006, 2007, 2016, and 2017, as well as a number of minor

offenses. (See PSR at ¶50-61.) Indeed, Petitioner remained on state court probation between

August 2017 through August 4, 2019. (PSR at ¶59.) Petitioner was thus on probation at the time

of three of the six controlled weapons purchases which gave rise to his current convictions. (PSR

at ¶1, 59.)

II. LEGAL STANDARD

A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging

the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:

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 laws of

the United States, or that the court was without jurisdiction to

impose such a 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.

28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional

violation, to be entitled to relief the moving party must show that an error of law or fact constitutes

“a fundamental defect which inherently results in a complete miscarriage of justice, [or] an

omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley,

599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.

denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454, 458-59 (D.N.J.

2003).

III. DISCUSSION

A. No evidentiary hearing is necessary in this matter

A district court need not hold an evidentary hearing on a motion to vacate where “the

motion and files and records of the case conclusively show that the prisoner is entitled to no relief.”

28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545-56 (3d Cir. 2005); United States

v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “Where the record, supplemented by the trial judge's

personal knowledge, conclusively negates the factual predicates asserted by the petitioner or

indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required.” Judge

v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Gov’t of V.I. v. Nicholas, 759

F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham, 587 F. App’x 6, 8

(3d Cir. 2014); Booth, 432 F.3d at 546. Because Petitioner’s claims are either time barred or

without merit for the reasons expressed below, no evidentiary hearing is necessary in this matter.

B. Petitioner’s claims are without merit or time barred

In his motion to vacate sentence, Petitioner raises a number of claims in which he asserts

that his trial counsel was constitutionally deficient. The standard applicable to such claims is well

established:

[c]laims of ineffective assistance are governed by the two-prong test

set forth in the Supreme Court’s opinion in Strickland v.

Washington, 466 U.S. 668 (1984). To make out such a claim under

Strickland, a petitioner must first show that “counsel’s performance

was deficient. This requires [the petitioner to show] that counsel

made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see also

United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To

succeed on an ineffective assistance claim, a petitioner must also

show that counsel’s allegedly deficient performance prejudiced his

defense such that the petitioner was “deprive[d] of a fair trial . . .

whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick, 493

F.3d at 299.

In evaluating whether counsel was deficient, the “proper

standard for attorney performance is that of ‘reasonably effective

assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A

petitioner asserting ineffective assistance must therefore show that

counsel’s representation “fell below an objective standard of

reasonableness” under the circumstances. Id. The reasonableness

of counsel’s representation must be determined based on the

particular facts of a petitioner’s case, viewed as of the time of the

challenged conduct of counsel. Id. In scrutinizing counsel’s

performance, courts “must be highly deferential . . . a court must

indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland, 466

U.S. at 689.

Even where a petitioner is able to show that counsel’s

representation was deficient, he must still affirmatively demonstrate

that counsel’s deficient performance prejudiced the petitioner’s

defense. Id. at 692-93. “It is not enough for the defendant to show

that the errors had some conceivable effect on the outcome of the

proceeding.” Id. at 693. The petitioner must demonstrate that “there

is a reasonable probability, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694; see also Shedrick, 493 F.3d at 299. Where a

“petition contains no factual matter regarding Strickland’s prejudice

prong, and [only provides] . . . unadorned legal conclusion[s] . . .

without supporting factual allegations,” that petition is insufficient

to warrant an evidentiary hearing, and the petitioner has not shown

his entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d

386, 395 (3d Cir. 2010). “Because failure to satisfy either prong

defeats an ineffective assistance claim, and because it is preferable

to avoid passing judgment on counsel’s performance when possible,

[Strickland, 466 U.S. at 697-98],” courts should address the

prejudice prong first where it is dispositive of a petitioner’s claims.

United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).

Judge v. United States, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015).

In his first claim, Petitioner contends that his counsel provided ineffective assistance in

relation to his decision to plead guilty as he alleges counsel suggested to him that if he went to trial

and were convicted following an indictment, he would potentially face a guidelines range as high

as 210 to 262 months, when under the plea agreement Petitioner entered, he was faced with a

statutory maximum of 180 months. In the context of a guilty plea, a petitioner seeking to show

prejudice must “show that there is a reasonable probability that, but for counsel’s errors, he would

not have pled guilty and would have insisted on going to trial.” United States v. Bui, 795 F.3d

363, 367 (3d Cir. 2015) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). As the Third Circuit

has explained,

[w]hen addressing a guilty plea, counsel is required to give a

defendant enough information “‘to make a reasonably informed

decision whether to accept a plea offer.’” Shotts v. Wetzel, 724 F.3d

364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d 39,

43 (3d Cir. 1992), cert. denied, [571 U.S. 1224] (2014). We have

identified potential sentencing exposure as an important factor in the

decisionnmaking process, stating that “[k]knowledge of the

comparative sentence exposure between standing trial and accepting

a plea offer will often be crucial to the decision whether to plead

guilty.” Day, 969 F.2d at 43. In order to provide the necessary

advice, counsel is required “to know the Guidelines and relevant

Circuit precedent . . . .” United States v. Smack, 347 F.3d 533, 538

(3d Cir. 2003). However, “an erroneous sentencing prediction by

counsel is not ineffective assistance of counsel where . . . an

adequate plea hearing was conducted.” United States v. Shedrick,

493 F.3d 292, 299 (3d Cir. 2007).

Bui, 795 F.3d at 367.

Here, Petitioner’s first claim is chiefly concerned with Petitioner’s belief that, in discussing

comparative sentencing exposure, counsel suggested he could receive a sentence after a trial in

excess of the 180-month maximum1 which was applicable to the charges in the information to

which he agreed to plead guilty, which he believes amounts to counsel vastly overstating his

exposure. In so arguing, however, Petitioner completely ignores the context of his guilty plea.

Petitioner did not plead guilty after the Government had gone through the procedural hurdle of

securing an indictment, but rather agreed to plead guilty to an information which was limited to

two charges for the express purposes of Petitioner’s plea agreement. Had Petitioner refused the

deal and proceeded to trial, the Government would have had to indict him and would have been

1 In his reply brief (ECF No. 18), Petitioner attempts to adjust his claim, asserting that he was

actually subject only to an actual maximum of 10 years. Petitioner, however, is clearly mistaken

on that point – he pled guilty to two separate offenses, a trafficking offense with a five year

statutory maximum, and a felon in possession of a weapon charge with a ten year maximum, for a

total maximum sentence exposure of fifteen years so long as the trial court issued, as it did in this

case, consecutive sentences for the two offenses. See 18 U.S.C. §§ 922(a), (g); 18 U.S.C. § 924

(setting forth applicable penalties for the various violations of § 922). Petitioner’s assertion that

free as part of that indictment to charge Petitioner with any number of additional charges including

additional weapons trafficking and possession charges based on the considerable number of

transactions in which he engaged and the total number of firearms he possessed and sold. Thus,

in providing advice to Petitioner as to his plea agreement, counsel was required to make a

reasonable estimate of the exposure Petitioner would have faced at trial after a formal indictment

which was likely to contain additional charges beyond those in the limited information to which

Petitioner chose to plead guilty. Indeed, that very plea agreement expressly states that one of the

chief benefits Petitioner obtained was limiting his exposure to only the charges in the information

rather than the complete universe of charges the Government could have brought had they been

required to indict him. Counsel’s estimate as described by Petitioner of a significantly higher

exposure had he proceed to and lost at trial following a formal indictment was thus entirely

reasonable and does not amount to deficient performance in this context. As counsel’s advice was

within the realm of competent advice, and Petitioner was clearly made aware of the maximum

sentence applicable to his guilty plea during his plea hearing, Petitioner has not show that counsel’s

advice in relation to the plea hearing amounts to deficient performance, and his claim of ineffective

assistance of counsel is without merit.

In a related claim, Petitioner also asserts that counsel was ineffective during plea

negotiations, arguing that counsel did not conduct actual negotiations but rather just referred the

Government’s offer to Petitioner. Petitioner in essence is asserting that, had counsel been a better

negotiator, he may have been able to secure a more beneficial plea option. A petitioner, however,

has no right to a “better” plea deal than the one he chose to accept, and cannot show prejudice

based on alleged failure to negotiate a better deal without providing concrete evidence to support

the assertion that the Government would have offered a better deal, Petitioner would have accepted

it, and the court would have accepted that bargain. See, e.g., Burger v. Kemp, 483 U.S. 776, 785-

86 (1987) (petitioner cannot show prejudice based on the failure to secure a better deal without

evidence indicating that the prosecutor “would have been receptive to a [better] plea bargain”);

Eiseman v. Herbert, 401 F.3d 102, 109 (3d Cir. 2005) (the “failure to obtain a [better] plea bargain

is not evidence of ineffective assistance of counsel when the record does not contain evidence that

one might have been offered”); see also Amato v. United States, No. 19-19449, 2021 WL 5578850,

at *5 (D.N.J. Nov. 29, 2021). In this matter, there is no evidence to suggest that the Government

was amenable to a more favorable plea agreement. Given the strength of the evidence of against

Petitioner, there is no reason to expect that the Government would have been interested in offering

Petitioner a more favorable plea agreement. Petitioner thus cannot show that he was prejudiced

by counsel’s alleged failings during plea negotiations, and that claim, too, fails to set forth a valid

basis for habeas relief.

Petitioner next contends that counsel proved ineffective at sentencing in failing to more

forcefully argue against the obliterated serial number guidelines enhancement and that his sentence

should be reduced based on the contention that his sale of firearms amounted to a form of

entrapment. Counsel, however, did present both arguments to the Court – more specifically, why

the obliterated serial number enhancement did not apply and why Petitioner should be entitled to

a reduced sentence in light of his contention that his repeated sales of firearms were the result of

prodding by a government informant. The Court, after fairly considering these arguments,

rejecting both on the merits, finding that Petitioner had not shown that his will had been overborn

and that the obliterated serial number enhancement applied as one of the firearms Petitioner sold

had a serial number which had been significantly damaged and was illegible prior to Government

attempts to recover at least part of that serial number. Petitioner’s argument regarding the

enhancement in this case generally relied on two principles – that the serial number in question

was able to be partially recovered through technical means and that the weapon in question should

not qualify for the enhancement because it had a broken hammer spring and was inoperable at the

time of the sale. As to the second point, relevant federal law defines as a firearm any weapon

“which will or is designed to or may readily be converted to expel a projectile by the action of an

explosion.” 18 U.S.C. § 921(a)(3); see also U.S.S.G. § 2K2.1 cmt. n. 1. The firearm in this matter

did have a broken hammer spring, but as the Court noted, it was easily and readily repaired with

the replacement of that spring – a part commonly and easily purchased from the weapon’s

manufacturer. (See Docket No. 20-675 at ECF No. 48 at 4.) The Kel Tec pistol in question thus

clearly meets the definition of a firearm sufficient to support the enhancement. It is likewise clear

that the obliterated serial number enhancement applies even in those cases where a serial number

is only partially destroyed or where the Government can successfully recover portions of the serial

number through chemical means. See, e.g., United States v. Briggs, 382 F. App’x 138, 141 (3d

Cir. 2010); see also United States v. Warren, 820 F.3d 406, 408 (11th Cir. 2016) (sentencing

enhancement requires only that the serial number be at least partially altered or obliterated);

Haynes v. United States, No. 19-5008, 2021 WL 236340, at *4 (D.N.J. Jan. 25, 2021) (“[t]here is

no legal support for [the] assertion that the enhancement cannot be applied [where the

Government] has been able to recover an altered or obliterated serial number”). As the weapon in

question clearly had an at least partially obliterated serial number – a point Petitioner himself

actually admitted in his plea colloquy – and was readily rendered capable of firing with the

replacement of a single hammer spring – the obliterated serial number enhancement clearly

applied, and counsel was not ineffective in failing to better argue this point.

Petitioner’s assertions regarding the sentencing entrapment argument are equally without

merit. Although the Third Circuit has not explicitly adopted nor rejected the concept of a sentence

reduction based on sentencing entrapment, such an argument would, at minimum, require that the

defendant establish that “official conduct leads an individual otherwise indisposed to dealing in

larger quantity or different type of [illicit product] to do so, and the result is a higher sentence.”

United States v. Sed, 601 F.3d 224, 230 (3d Cir. 2010) (internal quotations omitted). As the Court

noted in this matter, Petitioner has a lengthy criminal history, including both weapons offenses

and offenses relating to selling controlled substances, and Petitioner’s arguments that he was

entrapped into selling firearms he otherwise alleges he would not have sold is heavily undermined

by the fact that Petitioner repeatedly engaged in the illegal sale of firearms in this matter –engaging

in six separate sales of seven firearms to the Government’s informants and agents. Thus, even if

one could argue that the Third Circuit should accept the concept of a sentencing entrapment

defense, such a defense is patently inapplicable in a case such as this where Petitioner’s own

repeated conduct clearly shows that he was not indisposed to the illegal sale of firearms he was

forbidden from even possessing. Accordingly, Petitioner’s argument is utterly without merit, and

counsel thus could not have been ineffective in allegedly failing to more forcefully argue this point

at sentencing. Petitioner’s sentencing arguments present no basis for habeas relief.

Petitioner also asserts that trial counsel also proved ineffective in discussing with Petitioner

a prospective appeal. According to Petitioner, counsel advised against the filing of an appeal, and

Petitioner therefore did not request that she file one on his behalf. Petitioner contends, however,

that he made that decision because of counsel’s “bad advice” and failure to fully discuss with him

the “pros and cons of taking the appeal.” (ECF No. 1-1 at 8.) Petitioner admits in his motion to

vacate sentence, however, that he never instructed or requested that counsel file an appeal on his

behalf, but instead relied on her allegedly poor advice in not pursuing an appeal. (Id.) As the

Third Circuit has explained, such claims are governed by the Supreme Court’s ruling in Roe v.

Flores-Ortega, 528 U.S. 470 (2000):

[in Flores-Ortega,] the Court addressed whether counsel may be

found deficient for failing to file a notice of appeal absent specific

instruction from the defendant not to do so. Because the question

concerned whether counsel’s representation was constitutionally

defective, the Court held that the two-part Strickland test governed

its inquiry. [Roe, 528 U.S. at 476-77.] Applying that standard to

the particular facts before it, the Court held that “counsel has a

constitutionally imposed duty to consult with the defendant about an

appeal when there is reason to think either (1) that a rational

defendant would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular

defendant reasonably demonstrated to counsel that he was interested

in appealing.” Id. at 480[.] The Court further explained that it

“employ[ed] the term ‘consult’ to convey a specific meaning –

advising the defendant about the advantages and disadvantages of

taking an appeal, and making a reasonable effort to discover the

defendant’s wishes.” Id. at 478[.] Additionally, the Court instructed

that courts undertaking this inquiry, as with all ineffective-

assistance claims, “take into account all the information counsel

knew or should have known.” Id. at 480 . . . (citing Strickland [v.

Washington, 466 U.S. 668, 690 (1984)]).

With respect to Strickland’s prejudice prong, the Court held

that the harmless-error inquiry applied and that relief could not be

granted unless the defendant “demonstrate[s] that there is a

reasonable probability that, but for counsel’s deficient failure to

consult with him about an appeal, he would have timely appealed.”

Id. at 484[.] The Court did not identify any determinative factors in

this regard, but did stress that “evidence that there were non-

frivolous grounds for appeal or that the defendant at issue promptly

expressed a desire to appeal will often be highly relevant.” Id. at

485[.]

Shedrick, 493 U.S. at 300-01; see also Garza v. Idaho, 586 U.S. 232 (2019) (Flores-Ortega rule

applies even where there is an applicable appeal waiver).

Here, Petitioner does not assert that he ever actually requested that counsel file an appeal

on his behalf, and instead in his motion to vacate sentence states that he did not make such a request

after heeding counsel’s advice that there was not a good basis for an appeal. Petitioner has likewise

failed to show that counsel had any reason to believe that a rational defendant in Petitioner’s

position, i.e., a defendant who pled guilty and whose only apparent arguments related to his

sentencing were belied by the applicable case law, would have desired to appeal. Indeed, the

implications of Petitioner’s assertions are that he agreed with counsel that filing an appeal would

have been an exercise in futility. Although Petitioner vaguely asserts that counsel’s advice was

not sufficient or did not sufficiently discuss the pros and cons of an appeal, his claim that counsel

should have known that with better advice he would have wanted an appeal largely rests on his

after-the-fact belief that he had viable claims in regard to the obliterated serial number

enhancement and as to his sentencing entrapment argument. As explained above, the claims

Petitioner belatedly believes he should have pursued on appeal were not supported by the relevant

case law, a point counsel essentially conceded during the sentencing hearing. As counsel

apparently conveyed this to Petitioner, and Petitioner does not allege he asked counsel to file an

appeal and he instead suggests he agreed an appeal would be fruitless, the record presents no basis

to support the conclusion that counsel should have known that a rational defendant in Petitioner’s

position would have desired to pursue an appeal. Petitioner thus cannot establish that his counsel

was ineffective in failing to consult with him further or file a notice of appeal on his behalf.

In addition to the claims discussed above raised in Petitioner’s original motion to vacate

sentence, Petitioner also filed two supplemental motions in which he raises two new claims, both

of which are premised at least in part on the Supreme Court’s decision in New York Rifle & Pistol

Assn. v. Bruen, 597 U.S. 1 (2022). (See ECF Nos. 9-10, 19.) In November 2022, Petitioner filed

a motion raising a claim in which he asserted that, in light of Bruen, the obliterated serial number

enhancement should not apply to his case, and counsel was ineffective for not foreseeing the

outcome in Bruen and raising an argument on this basis. (See ECF No. 10.) Approximately a year

later in November 2023, Petitioner filed his second supplement, in which he raises a claim

asserting that 18 U.S.C. § 922(g)(1) is unconstitutional as applied to him in light of Bruen, and his

conviction under that statute should therefore be invalidated.

Both of these claims were raised for the first time well after the one-year limitations period

applicable to this § 2255 matter expired. Motions to vacate sentence are subject to a one year

statute of limitations which is evaluated on a claim by claim basis. See 28 U.S.C. § 2255(f);

Richardson v. United States, No. 20-10045, 2023 WL 5623943, at *3 (D.N.J. Aug. 31, 2023); see

also Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004) (habeas limitations periods are determined

on a claim-by-claim basis and the filing of a timely claim will not render later filed claims timely

absent relation back). That limitations period generally runs from the date the conviction becomes

final, which occurs in cases where no appeal was filed where the time for filing a direct appeal

expired. Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). In this matter, Petitioner’s

judgment of conviction was entered on August 16, 2021, and his conviction became final fourteen

days later when Petitioner failed to file a direct appeal. Id.; see also Fed. R. App. P. 4(b)(1)(A)(i)

(appeal of conviction due within fourteen days of the entry of judgment). Thus, absent a basis for

tolling or a later starting date for the limitations period, Petitioner’s limitations period in this matter

expired on August 30, 2022, one year from the date on which his conviction became final. Both

of Petitioner’s supplemental claims were filed well after this date.

In this matter, Petitioner has not presented any basis for the tolling of the limitations period,

nor does this Court perceive any basis for tolling from the record. Instead, Petitioner appears to

believe that his limitations period is extended by the Supreme Court’s decision in Bruen. Pursuant

to 28 U.S.C. § 2255(f)(3), a federal prisoner’s habeas limitations period may receive a later start

date where his claim rests on a “right newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review.” In such cases, the one-year limitations

period will run from the date on which “the right asserted was initially recognized by the Supreme

Court.” Id. In Bruen, the Supreme Court neither invalidated § 922(g)(1), nor invalidated the

applicability of the obliterated serial number enhancement; instead the Court found

unconstitutional state licensure schemes which permitted states to deny private citizens permits to

carry firearms on discretionary bases such as requirements that citizens be required to show

“proper cause” why they should be permitted to carry firearms. 597 U.S. at 17-70. While the

Court certain clarified in Bruen the analytical framework for facial and as applied challenges to

statutes premised on violations of the Second Amendment, nothing in the Court’s holding or

decision passed on the issues Petitioner now seeks to raise – the lawfulness of obliterated serial

number enhancements or the lawfulness of statues barring felons from possessing weapons. Id.

Indeed, in their concurrence two justices in the Bruen majority explicitly noted that Bruen in no

way stood for the invalidation of limitations on felons possessing firearms. Id. at 80 (Kavanaugh,

J., concurring joined by the Chief Justice).

Since Bruen, the Supreme Court has upheld similar provisions at least temporarily barring

individuals from possessing firearms based on perceived dangerousness. See United States v.

Rahimi, 602 U.S. 680 (2024) (upholding 18 U.S.C. § 922(g)(8)’s provision barring those under

domestic violence restraining orders from possessing firearms). The Court has thus not yet

recognized the right on which Petitioner relies – i.e., that felons may not be barred from possessing

firearms,2 or that the guidelines enhancement for obliterating the serial number of a firearms

violates the Second Amendment. As the Supreme Court has not yet recognized the rights on which

Petitioner relies, § 2255(f)(3) does not provide a later running date for the statutes of limitations.

See, e.g., Richardson v. United States, No. 23-20820, 2025 WL 1703059, at *2 (D.N.J. June 18,

2 The Court does note that while the Third Circuit has ruled that an individual with a single non-

violent conviction may not be permanently disarmed in violation of the Second Amendment, see

Range v. Att’y Gen., 124 F.4th 218 (3d Cir. 2024), they have also held that those under parole,

probation, or supervised release, such as Petitioner during half of the possessions and sales giving

rise to his current conviction, may be prohibited from possessing firearms until such time as they

complete that portion of their criminal sentence. See United States v. Quailes, 126 F.4th 215, 221-

24 (3d Cir. 2025) (felons under state parole, probation, or supervised release may be barred from

possessing firearms at least until their sentence concludes without violating the Second

Amendment). Thus, given Petitioner’s probation status at the time of several of the transactions

underlying his conviction, currently applicable Third Circuit law would still support Petitioner’s

conviction under § 922(g)(1) for the weapons he possessed and sold in the first several controlled

2025) (Bruen did not announce a new rule of constitutional law applicable to persons with criminal

convictions); United States v. Neal, No. 23-1779, 2024 WL 1095814, at *2 (W.D. Pa. Mar. 13,

2024) (same); Battle v. United States, No. 23-3438, 2023 WL 6307515 at *3 (D.N.J. Sept. 28,

2023).

As Petitioner is not entitled to a later start date for the limitations period and has not even

attempted to show any proper basis for the tolling of the limitations period, his two supplemental

claims are time barred unless they relate back to the filing of Petitioner’s original motion to vacate

sentence. Pursuant to Federal Rule of Civil Procedure 15(c), a later raised claim will relate back

to an original filing, and therefore render the later raised claim timely if the original claim was

filed timely, where the new claim “arose out of the conduct, transaction, or occurrence set out – or

attempted to be set out – in the original pleading.” Wilkerson v. Superintendent Fayette SCI, 871

F.3d 221, 236 (3d Cir. 2017) (quoting Fed. R. Civ. P. 15(c)(1)(B)). The Supreme Court clarified

the applicability of this rule in Mayle v. Fenix, 545 U.S. 644 (2005). In so doing, the Court held

that in determining whether a claim arose out of the same conduct, transaction, or occurrence, a

court cannot define the relevant frame too broadly, and even where a petitioner raises the same

type of claim – such as ineffective assistance of counsel – it will not relate back where it concerns

issues different in time and type than those addressed in the original claim. Id. at 657-64. It is not

sufficient that a claim merely challenges the same conviction or sentence; a new claim will only

relate back to an originally raised claim where it is “tied to a common core of operative facts” with

one of the originally raised claims. Id.; see also Wilkerson, 871 F.3d at 237-38.

Here, Petitioner’s later raised claims assert that counsel was ineffective in not raising a

constitutional challenge to the obliterated serial number enhancement based on the reasoning of

Bruen, and that his conviction under § 922(g)(1) is invalid in light of Bruen and its progeny.

Petitioner’s second challenge – seeking the vacation of the § 922(g)(1) conviction – is clearly

different in time and type from any claim raised in Petitioner’s motion to vacate sentence, and is

not tied to a common core of operative facts with any originally raised claim. Petitioner’s

challenge to his § 922(g)(1) conviction therefore does not relate back to his original filing, and is

clearly time barred a such.

Turning to Petitioner’s challenge to the obliterated serial number enhancement, Petitioner’s

supplemental challenge relies on Bruen and asserts that counsel failed to presage and raise a Bruen

challenge. Petitioner further asserts that even aside from ineffective assistance, the enhancement

is unconstitutional on its own. Although this claim challenges the same enhancement addressed

in one of Petitioner’s claims discussed above, it is sufficiently different that it is not tied to a

common core of operative facts – it does not challenge the enhancement based on weapon

operability or the recovery of part of a serial number. Rather, it instead challenges the

enhancement based on a constitutional challenge arising out of intervening case law. This claim

thus does not relate back to Petitioner’s earlier claims and is therefore time barred.3 As all of

Petitioner’s original claims are without merit for the reasons discussed above, and both of his

supplemental claims are clearly time barred, Petitioner’s motion to vacate and supplemental

motions to vacate must be denied.

3 To the extent this claim rests on assertions of ineffective assistance of counsel, the Court notes

that counsel cannot be ineffective in failing to foresee an intervening change in the law, and any

assertion based on counsel’s failure to foresee and argue a Bruen claim prior to Bruen is without

merit as an ineffective assistance of counsel claim. See United States v. Doe, 810 F.3d 132, 154

C. Certificate Of Appealability

Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from

the final order in that proceeding unless he makes “a substantial showing of the denial of a

constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason

could disagree with the district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-

El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Because all of Petitioner’s claims are meritless or time barred for the reasons expressed above,

Petitioner has failed to make a substantial showing of a denial of a constitutional right, and his

motion is not adequate to receive encouragement to proceed further. This Court therefore denies

Petitioner a certificate of appealability.

IV. CONCLUSION

For the reasons set forth above, Petitioner’s motion to vacate sentence (ECF No. 1) and

supplemental motions to vacate (ECF Nos. 9-10, 19) are DENIED, and Petitioner is DENIED a

certificate of appealability. An appropriate order follows.

Date: January 16, 2026

s/ Zahid N. Quraishi

ZAHID N. QURAISHI

UNITED STATES DISTRICT JUDGE