A "collateral attack on a final judgment in a criminal case is generally available under §2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice,' " pursuant to Graziano v. U.S., a 1996 decision of the 2nd Circuit. A grand jury charged the petitioner, Brian Oten, with possession with intent to distribute five grams or more of a substance that contained cocaine. Although he apparently disputed the amount of cocaine, Oten pled guilty. A District Court calculated his offense level at 17 and his criminal history category at VI. The sentencing court found that the U.S. Sentencing Guidelines range was 60 to 63 months and sentenced the petitioner to 60 months, plus four years of supervised release. Oten filed a petition to reduce his sentence pursuant to §3582(c), and the court construed the petitioner's motion as a motion to vacate, set aside or correct his sentence pursuant to 28 United States Code §2255.  To prove ineffective assistance, a defendant must establish counsel's assistance was below an objective standard of reasonableness and a reasonable probability that, but for counsel's error, the result would have been different. Oten claimed that his attorney should have challenged his prosecution in federal court, because co-defendants who were prosecuted in state court allegedly received shorter sentences. Federal laws that criminalize drug distribution are constitutional. Oten's claim lacked merit. Failure to raise a claim that lacks merit does not qualify as ineffective assistance. Although Oten also claimed counsel's advice to plead guilty was erroneous and that counsel failed to adequately investigate, Oten failed to prove that counsel's performance was below a reasonable standard and that, but for counsel's alleged error, the result would have been different. Oten was entitled to re-sentencing under the Fair Sentencing Act, which reduced the statutory penalties for crack cocaine offenses, to decrease the disparity between powder and crack cocaine offenses. The District Court re-sentenced the petitioner to 51 months in prison, plus four years of supervised release.

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