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UNITED STATES v. SEWARDS

March 22, 1995

UNITED STATES OF AMERICA
v.
PATRICK SEWARDS


Franklin S. Van Antwerpen, United States District Judge


The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN

VAN ANTWERPEN, J.

 March 22, 1995

 On December 8, 1992, defendant Patrick Sewards pled guilty to one count of unlawful distribution of diazepam (valium) in violation of 21 U.S.C. § 841(a)(1). *fn1" On April 7, 1993, we sentenced Dr. Sewards to three months incarceration to be followed by three years supervised release. He has now filed this habeas corpus petition to permit him to withdraw his guilty plea, vacate his conviction and sentence, pursuant to 28 U.S.C. § 2255, and set the matter for trial. *fn2"

 
In his petition, Dr. Sewards alleges that he was denied effective assistance of counsel because his attorney, James Heidecker, failed to recognize and advise defendant that defendant's alleged drug abuse could negate the intent element of his narcotics distribution charge. Defendant thus contends that his subsequent guilty plea was not knowing and voluntary. Defendant also alleges that he was denied effective assistance of counsel at sentencing because Attorney Heidecker failed to present mitigating evidence of his drug addiction. We held an evidentiary hearing (hereinafter "hearing") in this matter on November 22, 1994. *fn3" The parties subsequently filed supplemental briefs. Based on Dr. Sewards' motion and accompanying memorandum, the government's responsive memorandum, the evidence presented at the evidentiary hearing, and the supplemental briefs, we now address Dr. Sewards' petition.
 
I. FACTUAL BACKGROUND
 
On April 18, 1990, Charles Calabrese met with petitioner, Dr. Patrick Sewards, a practicing medical doctor and surgeon, in the latter's office in Abington, Pennsylvania. *fn4" Calabrese had previously been treated by Dr. Sewards for an injured knee, but an illegal relationship developed between the two in which Mr. Calabrese purchased prescriptions for controlled substances from Dr. Sewards. *fn5" Unbeknownst to Dr. Sewards, Calabrese had become a government informant for the Drug Enforcement Agency ("DEA") and was wearing a hidden recording device on that day. During the course of the meeting, Calabrese asked Sewards if he could get him a case of diazepam, a Schedule IV controlled substance, often sold under the brand name valium. Dr. Sewards agreed to sell Calabrese 5000 dosage units of diazepam for $ 550. *fn6" A pharmaceutical wholesaler in New York subsequently received Dr. Seward's order for 50 bottles of diazepam, each containing 500 dosage units. The DEA, however, instructed the wholesaler to only ship Dr. Sewards 10 bottles, which it did at a price of $ 9 per bottle.
 
On April 30, 1990, Calabrese returned to Dr. Seward's office with $ 550 of government money, and again wearing a hidden recording device. Dr. Sewards sold Calabrese 8 bottles of diazepam for $ 480 and told him that the remainder of his diazepam order would be in by the end of the week. Calabrese met with Dr. Sewards again in Sewards' office on four subsequent occasions.
 
On September 30, 1992, Dr. Sewards was indicted for one count of unlawful distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1). The indictment was based on Dr. Sewards' sale of 946.8 grams of diazepam to Calabrese on April 30, 1990. Dr. Sewards initially entered a plea of not guilty to this charge. On December 8, 1992, at the commencement of his jury trial, Dr. Sewards changed his plea to guilty in a lengthy colloquy. On April 7, 1992, Dr. Sewards was sentenced to three months imprisonment to be followed by three years supervised release, a fine of $ 10,000, restitution of $ 480, and a special assessment of $ 50. (N.T., 4/7/93, pp. 101-105). This sentence was based on an initial total offense level of 10, criminal history category 1, with a two point reduction for acceptance of responsibility agreed to by the government. Based on the stipulation by the parties, we granted the two point reduction resulting in an offense level of 8. (N.T., 4/7/93, p. 89). The sentencing guideline range therefore was 0 to 6 months. Defense motions for downward departure based upon U.S.S.G. §§ 5K2.12 (coercion and duress) and 5K2.0 (II)(aberrant behavior) were denied. (N.T., 4/7/93, pp. 89-91). Throughout these proceedings, Dr. Sewards was represented by Mr. James Heidecker, an Allentown attorney who had represented Dr. Sewards since February 1991 in his ongoing divorce and separation proceedings. (N.T., 11/22/94, p. 24).
 
On September 9, 1994, Dr. Sewards filed this petition to withdraw his guilty plea, and vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. An evidentiary hearing was held on the matter on November 22, 1994. At the hearing, Dr. Sewards stated for the first time before this court that he had abused amphetamines and methamphetamines from 1981 to approximately January 1991, including the period of the charged offense. (N.T., 11/22/94, p. 6). He described the symptoms of his abuse as being weight gain, occasional blackouts and hallucinations, decayed teeth, edema in the legs, high blood pressure, and financial and marital problems. (N.T., 11/22/94, pp. 11-13). Dr. Sewards stated that he maintained a relatively normal medical practice during his alleged addiction of almost ten years, including the time of the charged offense. *fn7" He testified that he performed surgery, treated patients during office hours and prescribed medication on a regular basis. (N.T., 11/22/94, pp.37-38). He also admits that his review of the six tape recordings made by the DEA of his dealings with Calabrese led him to conclude that he was not suffering from either blackouts or hallucinations, two of the symptoms he had described as representative of his addiction. (N.T., 11/22/94, pp. 32-34). During this entire period, by his own admittance, Dr. Sewards was extremely reluctant to share the details of his addiction with anyone. (N.T., 11/22/94, pp. 13-14). In fact, he testified that he did not even inform his wife of his addiction until November 1992, several months after he was indicted. (N.T., 11/22/94, p. 25). Dr. Sewards alleges that, at his wife's prompting, he asked Mr. Heidecker whether his addiction had any bearing on his case but that Mr. Heidecker dismissed it out of hand and told the Sewards not to bring the issue up at trial. *fn8" Dr. Sewards stated that out of embarrassment he chose not to pursue the issue. (N.T., 11/22/94, 39-40). He also admitted that he had never been noticeably under the influence of drugs while in Mr. Heidecker's presence. (N.T., 11/22/94, p. 40). Mrs. Sewards also testified that she herself had raised the subject of Dr. Sewards' addiction with Mr. Heidecker while the three of them were in the car on the way to the trial. (N.T., 11/22/94, p. 65). Attorney Heidecker testified that while he remembered Mrs. Sewards briefly bringing up Dr. Sewards' "drug problem" in the car on the way to trial, Dr. Sewards himself made no mention of it at that point and in fact appeared to "tense up" at the mention of the problem. (N.T., 11/22/94, p. 70). He chose not to pursue the issue with Dr. Sewards at this point because Dr. Sewards was clearly embarrassed by the topic and also because he did not perceive it to be a defense, given the manner in which it had been raised. (N.T., 11/22/94, p. 75). Mr. Heidecker also stated that, in the eight months previous to the trial, he spoke with Dr. Sewards "repeatedly and continuously" about the evidence against him in the case and that neither Dr. or Mrs. Sewards had broached the subject of drug addiction previous to the day of the trial. (N.T., 11/22/94, pp. 71-72). He denied ever telling the Sewards not to mention the drug problem in court. (N.T., 11/22/94, p. 73). He also indicated that he had witnessed neither the blackouts or hallucinations described by Dr. Sewards nor any other symptoms that would have led him to believe that Dr. Sewards was under the influence of drugs. (N.T., 11/22/94, p. 74).
 
Mr. Heidecker also testified that before trial Dr. Sewards had asked what his chances of acquittal were and that he, Mr. Heidecker, had responded that they were "very, very small." *fn9" (N.T., 11/22/94, p. 76). Based on this assessment, Mr. Heidecker advised Dr. Sewards to plead guilty since he faced a maximum sentence of three years if he proceeded to trial and was found guilty. Mr. Heidecker testified that after much discussion, the Sewards each decided that the correct course of action would be for Dr. Sewards to enter a guilty plea. (N.T., 11/22/94, p. 76). He stated that he asked Dr. Sewards several times if he was certain he wanted to enter a plea of guilty. (N.T., 11/22/94, pp. 76-77). He also stated that there was no mention of the drug addiction during these discussions (N.T., 11/22/94, p. 77). Dr. Sewards admits that he was not under the influence of narcotics at the time of the taking of his guilty plea. (N.T., 11/22/94, p. 29).
 
Finally, on cross examination, Mr. Heidecker stated that he does not believe that Dr. Sewards' drug addiction would have presented a viable defense at trial since he saw nothing to indicate that Dr. Sewards had been "deprived of any will." (N.T., 11/22/94, p. 81). He also noted that even if they had gone to trial, and he had been aware of the details of the drug usage, he would nevertheless have advised Dr. Sewards to proceed with the entrapment defense. (N.T., 11/22/94, pp. 81-82). We are satisfied with the testimony of attorney Heidecker and find it credible.
 
II. ANALYSIS
 
In his petition for habeas relief, Dr. Sewards raises two separate areas where he alleges that Mr. Heidecker's representation proved to be ineffective. Both these allegations are judged by the same two-prong Constitutional standard. In order to prevail on an ineffective assistance of counsel claim, defendant must show both "that counsel's representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-94, 104 S. Ct. 2052, 2065-68, 80 L. Ed. 2d 674 (1984); see also Reese v. Fulcomer, 946 F.2d 247, 257 (3d Cir. 1991), cert. denied, 112 S. Ct. 1679, 118 L. Ed. 2d 396 (1992); United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989). In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the Supreme Court held the test of Strickland to be applicable to ineffective assistance claims arising out of the plea process.
 
The burden of proof upon the defendant under Strickland is a heavy one, since there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Strickland, 466 U.S. at 689; see United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992); see also Zettlemoyer v. Fulcomer, 923 F.2d 284, 296 (3d Cir. 1991) (defense counsel cannot be deemed ineffective just because counsel is not successful), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 reh'g denied, 502 U.S. 1000, 112 S. Ct. 624, 116 L. Ed. 2d 646 (1991). With this standard in mind, we will examine first Dr. Sewards' claim with respect to his guilty plea and will then consider his claim regarding Mr. Heidecker's representation at sentencing.
 
A. Knowing and Voluntary Guilty Plea
 
The standard for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant," North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). "Ineffective assistance of counsel may render a guilty plea involuntary, and hence invalid." Hill, 474 U.S. at 56.
 
Dr. Sewards alleges that the guilty plea he entered on December 8, 1992, was not knowing and voluntary because his decision to plead guilty was made without knowledge that his drug addiction could serve as the basis for a defense at trial. He claims he advised his attorney, Mr. Heidecker, that at the time of the charged offense he was addicted to drugs, but that Mr. Heidecker advised him not to make any reference to that addiction in Court. Dr. Sewards further alleges that if he had been aware that his drug addiction would have served as a viable defense to the specific intent requirement of the statute under which he pled guilty, he would have elected to ...

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