to fifty-three (53) months on both counts of the Indictment, such terms to run concurrently. Id. at 157.
A. Defendant's Allegations
Defendant alleges that the Court made four legal errors at his sentencing hearing, resulting in an improperly calculated sentence. Moreover, he alleges that his sentencing counsel was ineffective.
First, defendant alleges the Court should not have admitted Agent Tropea's testimony at sentencing on the ground that that testimony violated the Federal Rules of Evidence, and that counsel was ineffective in not objecting to the admission of that testimony. Second, defendant argues that the Court should have accounted for the claimed over-representation of his criminal history in calculating his sentence, and that counsel was ineffective in failing to move for a downward departure on that basis. Third, defendant argues that the Court should have accounted for his allegedly extraordinary family circumstances in calculating his sentence, and that counsel was ineffective in failing to move for a downward departure on that basis. Fourth, and finally, defendant alleges that his offense level was improperly enhanced pursuant to USSG § 2K2.1(b)(5) because the government engaged in sentencing entrapment to increase his sentence, and that counsel was ineffective in failing to raise this issue. Defendant has the burden of proof on all such issues. United States, et rel. Freddie M. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir. 1976).
B. Procedural Issues
Defendant is barred from collaterally attacking his sentence pursuant to 28 U.S.C. § 2255 so far as that attack is based upon issues that could have been, but were not, raised on direct appeal. See United States v. Frady, 456 U.S. 152, 162-63, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982); United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993). Defendant could have, but did not, raise the following three claims on direct appeal: 1) that his sentence was improperly calculated due to the improper admission of evidence in violation of the Federal Rules of Evidence, 2) that his sentence should have taken into account the alleged over-representation of his criminal history by his placement in Criminal History Category III, and 3) that his sentence should have taken into account his allegedly extraordinary family circumstances. Therefore, those three claims are procedurally barred. To avoid the bar, defendant must prove "both (1) 'cause' excusing his . . . procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Frady, 456 U.S. at 168.
To satisfy his burden of showing cause that excuses his failure to raise these issues on appeal, defendant argues that counsel was ineffective with respect to the three issues in question. This argument requires that the Court analyze the three underlying claims and the issue of whether counsel was ineffective.
Defendant's sentencing entrapment claim was raised on appeal. "Section 2255 generally 'may not be employed to relitigate questions which were raised and considered on direct appeal.'" United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993) (quoting Barton v. United States, 791 F.2d 265, 267). The Third Circuit has, however, identified four exceptions to that rule: 1) "newly discovered evidence that could not have reasonably have been presented at the original trial," 2) "a change in applicable law," 3) "incompetent prior representation by counsel," 4) "or other circumstances indicating that an accused did not receive full and fair consideration of his federal constitutional and statutory claims." United States v. Palumbo, 608 F.2d 529, 533 (3d Cir. 1979) (citations and footnotes omitted).
Defendant, apparently forgetting that the sentencing entrapment issue was raised by counsel at sentencing and on appeal, argues only that his sentencing counsel was ineffective in failing to raise this claim in those proceedings. Nevertheless, the Court will address all of the above exceptions to the rule that a § 2255 motion may not be used to relitigate issues raised and considered on direct appeal.
C. Defendant's Ineffective Assistance of Counsel Claim
1. Standard for Consideration of Ineffectiveness Claims
Defendant's ineffective assistance of counsel claim is controlled by Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), in which the Supreme Court of the United States set forth the standard for consideration of such claims. Justice O'Connor wrote that:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment [to the Constitution of the United States]. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death penalty resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687.