MEMORANDUM OF OPINION AND ORDER

LESLEY WELLS, District Judge.

This matter comes before the Court on petitioner MacRoland B. Hurns' motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. (Doc. 80). The petitioner, who pled guilty to six counts of bank robbery, maintains that he received ineffective assistance of counsel. The government has responded in opposition. For the reasons that follow, the petitioner's motion is denied.

I.

On 23 September 2009, petitioner Mr. Hurns was charged with two counts of bank robbery in violation of 18 U.S.C. § 2113(a). (Doc. 1). On 31 March 2010, the petitioner filed a motion for a psychiatric examination, which was granted. (Doc. 23). On 4 June 2010, the Court received Mr. Hurns' sealed competency evaluation. (Doc. 40)

On 15 July 2010, a superseding information was filed charging Mr. Hurns with six counts of bank robbery, in violation of 18 U.S.C. § 2113(a). (Doc 45). The same day, a competency hearing was conducted before United States Magistrate Judge Nancy A. Vecchiarelli. Judge Vecchiarelli concluded that Mr. Hurns was competent to stand trial, as he did not meet "the criteria for a formal mental disorder and is mentally competent to understand the nature and circumstances of the proceedings against him and is able to assist in his defense." (Doc. 47).

On 29 November 2010, Mr. Hurns appeared before the Magistrate Judge and entered a guilty plea to all six counts of the superseding information. (Doc. 57; 58, p. 37). On 27 December 2010, this Court accepted Mr. Hurns' plea of guilty. (Doc. 59). There was no written plea agreement.

On 17 May 2011, Mr. Hurns filed his Sentencing Memorandum under seal, along with a psychological assessment. (Doc. 63). On 18 May 2011, the government filed a sentencing memorandum (Doc. 64), and Mr. Hurns responded. (Doc. 65).

On May 19, 2011, a sentencing hearing was held. The Court determined that Mr. Hurns' combined adjusted offense level was 29. (Doc. 73, p. 10). Since Mr. Hurns was found to be a career offender under U.S.S.G. § 4B1.1, his combined adjusted offense level was increased to 32. (Id., p. 11). Once a three-level reduction for acceptance of responsibility was accounted for, Mr. Hurns' adjusted offense level was 29. With a Criminal History Category VI, the advisory Guidelines range was 151 to 188 months on each count. (Id., pp. 10-11, 18).

After considering the relevant § 3553 factors, the Court sentenced Mr. Hurns to 170 months imprisonment on each of the six counts. (Doc. 67; Doc. 73, p. 32). The sentences were to be served concurrently, followed by three years of supervised release and a $600 special assessment. Mr. Hurns was ordered to pay restitution in the amount of $9,683.01. (Doc. 67; Doc. 73, pp. 32-33).

Mr. Hurns timely appealed to the Sixth Circuit. He argued that his sentence was procedurally unreasonable because the Court erroneously determined he was armed during some of the bank robberies; that the Court failed to consider relevant mitigating factors, such as his troubled childhood, low intelligence, and mental health issues; and that the Court failed to address his arguments that his criminal history was overrepresented and his sentence was disparate from that of his co-defendant. The Sixth Circuit affirmed the Court's judgment, stating:

United States v. Hurns, 468 Fed. Appx. 542, 543, 2012 WL 934022 (6th Cir. 2012) (unpublished).

Now before the Court is Mr. Hurns' Motion to Vacate pursuant to 28 U.S.C. § 2255, in which he argues that his lawyer was ineffective to his prejudice. (Doc. 80).

II.

Pursuant to 28 U.S.C. § 2255(b),

28 U.S.C. § 2255(b). To prevail on a § 2255 motion alleging constitutional error, the petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-638 (1993). To prevail on a § 2255 motion alleging non-constitutional error, the petitioner must establish a "`fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (citing Hill v. United States, 368 U.S. 424, 428 (1962)). It is well-settled "that to obtain collateral review relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982)).

If the record includes a factual dispute, the district court "must hold a hearing to determine the truth of the [petitioner's] claims." Turner v. United States, 183 F.3d 474, 477 (6th Cir.1999). Petitioner is not entitled to a hearing, however, "if the files and records of the case conclusively show that he is not entitled to relief." Green v. United States, 65 F.3d 546, 548 (6th Cir.1995).

III.

Under Strickland, there are two components to an ineffective assistance of counsel claim: constitutionally deficient representation and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show that representation was constitutionally deficient, the petitioner must demonstrate that counsel's errors were "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. However, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. Because "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable,"

Id.

To establish prejudice, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. When applying Strickland, if the Court can more easily dispose of an ineffective assistance claim based on lack of prejudice, it should follow that route. Watson v. Marshall, 784 F.2d 722, 726 (6th Cir.1985).

IV.

The petitioner argues that his attorney Debra Migdal provided ineffective assistance on a number of grounds: that attorney Migdal failed to pursue a plea agreement with the government; that she failed to review his PSR, which barred him from withdrawing his guilty plea; that she failed to seek relief on the grounds of his mental and learning disabilities; that she failed to argue disparate sentences between Mr. Hurns and his co-defendant, Alan Brown; that she failed to challenge his criminal history category; that she incorrectly advised him that if he entered his guilty plea he would not be subject to sentence greater than 105 months; and that she obstructed his right to appeal. The Court addresses, and rejects, each argument in turn.

First, the petitioner claims that attorney Migdal failed to seek a plea agreement with the government on his behalf. He argues that by failing to do so, his lawyer provided ineffective representation. The petitioner's factual claim is plainly contradicted by the record. During Mr. Hurns' change of plea hearing, the petitioner was placed under oath and the following colloquy took place:

(Doc. 58, pp. 5-6). Based on the record, Mr. Hurns acknowledged, while he was under oath, that the government made a plea offer and that Ms. Migdal communicated that offer to him. Other than a conclusory assertion otherwise, the petitioner offers nothing at this time that would undermine the facts as they were established during the change of plea hearing. Therefore, the petitioner's present claim that his lawyer never conveyed any plea offer to him, being "palpably incredible" and "patently frivolous," is rejected. See Peavy v. United States, 31 F.3d 1341, 1345 (6th Cir.1994).

Similarly, the Court rejects the petitioner's contention that his attorney failed to review the PSR with him. The following exchange occurred during the change of plea hearing:

(Doc. 58, p. 11). The record disproves Mr. Hurns' claim that Ms. Migdal failed to review the PSR with him. The petitioner's claim is accordingly rejected.

Mr. Hurns also complains that Ms. Migdal failed to seek a departure or variance based on his mental and learning disabilities, but the Court's review of counsel's sealed sentencing memorandum reveals that the petitioner's claim is incorrect. Ms. Migdal expressly requested that the Court consider the petitioner's mental health issues and learning disabilities when determining his sentence. (Doc. 63, pp. 2-7). Counsel discussed at length two psychological evaluations of the petitioner, his abusive childhood, and his problems with drug abuse. Id. As such, the petitioner's claim that counsel failed to properly seek relief based on his disabilities is patently false.

The petitioner next indicates that his co-defendant Alan Brown, who pled guilty to two counts of bank robbery, received a sentence of 33 months followed by three years of supervised release. Mr. Hurns states that he, in contrast, received significantly more prison time—170 months. The petitioner argues that his lawyer failed to urge the Court to avoid such a sentencing disparity. However, the record shows that Ms. Migdal did just that. On page 11 of her sentencing memorandum, counsel "request[ed] a downward variance to avoid an unwarranted sentencing disparity between the co-defendants in this case. (Doc. 63, p. 11).

The petitioner also argues that counsel was ineffective for her alleged failure to challenge his criminal history category calculation. This argument is also rejected. The record shows that Ms. Migdal did challenge the petitioner's criminal history, arguing that "the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history." (Doc. 63, pp. 9-10).

The petitioner next claims that his lawyer incorrectly advised him that if he entered his guilty plea he would not be subject to sentence greater than 105 months. This claim, like the others, is plainly contradicted by the record, as the record shows that Mr. Hurns was advised that he could face a sentence greater than 105 months if he pled guilty. The pre-plea PSR, which was prepared months before Mr. Hurns entered his plea, concluded that Mr. Hurns qualified as a career offender based on his prior convictions. At the plea hearing, the government stated its intention to argue that Mr. Hurns was a career offender with a base offense level 32, with a guideline range of 210-240 months prior to acceptance of responsibility. Mr. Hurns acknowledged that he understood the guidelines, the government's position, and that his sentence was within the Court's discretion. Furthermore, the following exchange occurred during the change of plea hearing:

(Doc. 58, pp. 21-22). In addition, Mr. Hurns affirmed during the hearing that his guilty plea was not induced by any promise of counsel:

(Doc. 58, pp. 30-31). Therefore, based on the record, Mr. Hurns' conclusory assertion that he was advised by his lawyer that he would not face a sentence greater than 105 months is patently false.

Finally, the Court rejects the petitioner's contention that Ms. Migdal somehow "obstructed" his right to appeal. Review of the case docket shows that Mr. Hurns did timely appeal his sentence to the Sixth Circuit, making it unclear how his appeal was obstructed.

V.

For the reasons stated above, the petitioner's motion to vacate is denied.

IT IS SO ORDERED.