NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 10

- 3152

_____________ UNITED STATES OF AMERICA

v. ALFONSO F. CARTER,

Appellant Appeal from the United States District Court for the Middle District of Pennsylva nia (No. 0314

- 1:1

- 99

- cr - 00099

- 001 ) Distr ict Judge: Hon orable Yvette Kane Submitted Pursuant to Third Circuit L

. A

. R

. 34.1(a)

T uesday, January 24, 2012 Before: McKEE, Chief Judge , FISHER, and GREENAWAY, Jr. , Circuit Judge s (Opinion Filed: May 1, 2012 )

_____________ OP INION OF THE COURT

_____________ McKEE, Chief Judge

. Alfonso Carter appeals the District C ourt’s denial of h is petition for a writ of habeas corpus

. Although Carter attempts to frame several issues for appeal, the Certificate of Appealability that thi s Court granted after the District C ourt denied his claim for habeas relief was l imited to a single issue. That issue is whether the D istrict2

C o urt erred in denying his habeas petition without a hearing on his claim that counsel was constitutionally ineff ective for failing to object to his career offender designation at sentencing. For the reasons that follow, we will affirm.
I. Since we write primarily for the parties, we need not recite the underlying facts or procedural history of this appeal. The Pr e - Sentence Report that was completed after Carter pled guilty to possession with intent to distribute cocaine and cocaine base classified him as a career offender under § 4B1.1 of the Sentencing Guidelines. That classification was based on two 1993
contro lled substance convictions and one 1998 simple assault conviction. However, Carter also had another controlled substance conviction in state court in 1999. 1
Ther e after , Carter filed a motion to vacate the sentence pursuant to 28 U.S.C. § 2255. The Distri ct C ourt denied that motion without an evidentiary hearing and this appeal followed.
II. 28 U.S.C. § 2255 requires the district court to hold an evidentiary hearing before ruling “unless the motion and files and records of the case show conclusively that the movant is not entitled to relief .” Government of the Virgin Islands v. Forte , 865 F.2d 59, 62 (3d Cir. 1989)

. “I n considering a motion to vacate a defendant’ s sentence, the court
must accept the truth of the movant’ s factual allegations unless they a re clearly frivolous

1 Although, the 1999 conviction was subsequently vacated by the Pennsylvania Superior Court, it was eventually reinstated.3

on the basis of the existing record. ” United States v. Lilly , 536 F.3d 190, 195 (3d Cir. 2008) (alteration omitted ) ( quotation marks and citation omitted). Carter’s claim for habeas relief arises from the District C ourt’s conclusion that he should be sentenced as a career offender.

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felon y that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). When applying § 4B1.1, t wo pri or convictions must be “ counted separately under the provisions of §4A1.1(a), (b), or (c).” Id. § 4B1.2(c)(2). “ Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest ( i.e. , t he defendant is arrested for the first offense prior to committing the second offense). ” Id. § 4A1.2(a)(2).
Ca r ter claims that the record does not indicate whether he committed his second offense before or after he was arrested for his initial offense. His second conviction in 1993 was for delivering cocaine to a minor. Carter argues that the record does not indicate when he delivered the cocaine to the minor and that he could have delivered the cocaine to the minor prior to his first arrest, which oc curred in July of 1992. However, the record clearly indica tes that Carter delivered the cocaine to the minor on October, 10, 1992, the same day the minor sold the cocaine to an undercover officer, i.e., October 10, 1992, after his first arrest. PSR 31 Moreover, a s noted by the
D istrict C ourt, Carter had a third contr olled substance conviction in 1999 , which also4

qualifies as a predicate conviction for his career offender designation. Thus, even if the two 1993 convictions counted as one conviction for purposes of § 4B1.1, Carter’s career offender designation still would have been proper. Accordingly, the District C ourt did not need to hold an evidentiary hearing to determine the merit of Carter’s habeas petition.
III.
For the reasons stated above, Car ter’s counsel was not ineffec tive in failing to object to the career offender designation, and the District C ourt did not abuse its discretion in denying Carter’s § 2255 motion without an evidentiary hearing. We shall affirm the Order of the District Cour t.