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UNITED STATES v. GORDON

October 1, 1997

UNITED STATES OF AMERICA
v.
JEFFREY PAUL GORDON; JEFFREY PAUL GORDON v. UNITED STATES OF AMERICA



The opinion of the court was delivered by: DALZELL

 Dalzell, J.

 October 1, 1997

 After five years of reflection, Jeffrey Paul Gordon has reconsidered the wisdom of his pressing his claims of innocence upon the jury that convicted him. Specifically, Gordon now finds constitutional fault in his trial counsel's failure to urge upon him a non-trial disposition of his case.

 Because Gordon's contention is, as far as we can tell, unprecedented in this or any other Circuit, we will address it at some length.

 Background

 On July 1, 1992, a grand jury returned an indictment against Gordon, a pharmacist. Gordon was charged with two counts of possession with intent to distribute and dispense controlled substances without a proper prescription, in violation of 21 U.S.C. § 841(a)(1). The indictment charged Gordon with unlawfully dispensing, "without a legitimate medical purpose and outside of the usual course of professional practice, that is, without a valid and proper prescription, approximately 9,000 Dilaudid (4 mg.) tablets" and "2,000 glutethimide (.5 gm.) tablets."

 At his sentencing on January 28, 1993, Gordon reasserted his innocence. Pet. Mem. at p.7, n.4. We sentenced Gordon to 121 months imprisonment, three years supervised release, a $ 17,500 fine, and a $ 100 special assessment.

 On September 9, 1993, our Court of Appeals upheld the conviction and affirmed the Judgment of this Court. United States v. Jeffrey Paul Gordon, 8 F.3d 813, (3d Cir. 1993). Gordon filed a petition for rehearing en banc on September 22, 1993, which the Court of Appeals denied. United States v. Jeffrey Paul Gordon, 8 F.3d 813 (3d Cir., 1993).

 Pursuant to 28 U.S.C. § 2255, Gordon now moves to vacate, set aside, or correct his sentence. Gordon contends that his trial counsel was ineffective because he did not advise him of his comparative sentence exposure under the Sentencing Guidelines between standing trial and entering a nolo contendere or an Alford plea, and did not explain the alleged "benefit" of entering such a plea. *fn1" For the reasons set forth below, we will deny Gordon's motion.

 Evidentiary Hearing

 The decision as to whether to hold an evidentiary hearing on a § 2255 motion is within the discretion of the trial court, which must first determine whether the files and records of the case "plainly" show "that the movant is not entitled to relief." See Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts; see also United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994); United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). As will be seen, because the record is sufficiently plain, and the essential facts cannot be disputed, we find that no evidentiary hearing is warranted.

 Legal Discussion

 A. Standard of Review

 When considering a claim of ineffective assistance of counsel, we are bound by the two-pronged test that the Supreme Court formulated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984): (i) whether the attorney's performance fell "below an objective standard of reasonableness", thus rendering the assistance so deficient that the attorney did not function as "counsel" as the Sixth Amendment guarantees, 466 U.S. at 687-88, and (ii) whether the attorney's ineffectiveness prejudiced the defense such that " there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See id. at 694; see also Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir.), cert. denied, 512 U.S. 1230, 114 S. Ct. 2730, 129 L. Ed. 2d 853 (1994).

 Habeas corpus relief is generally available only in "exceptional circumstances" to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure. See Hill v. ...


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