The opinion of the court was delivered by: REED
In December 1992, petitioner Robert C. Hartley ("Hartley") pled guilty to eight counts of violating the Drug Abuse Prevention and Control Act ("the Act"), 21 U.S.C. § 801 et. seq. (West 1981 & Supp. 1998). Hartley was convicted on these eight counts by Judge J. William Ditter, Jr. In April 1997, Hartley petitioned for a writ of habeas corpus on the basis of ineffective assistance of counsel, pursuant to 28 U.S.C. § 2255 (West 1994 & Supp. 1997). The case was transferred from the docket of Judge Ditter to my docket on April 13, 1998 (Criminal Action Document No. 66).
Pending before this Court is the motion of petitioner Hartley to vacate, set aside or correct sentence (Criminal Action Document No. 62), and the answer of the respondent United States thereto (Criminal Action Document No. 65). For the following reasons, the motion by petitioner Hartley will be granted with respect to the vacation of the convictions and sentences for Counts two, four, and six, and will be denied with respect to the request for a re-sentencing hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 22, 1992, government informant Patrick Keenan ("Keenan") told Special Agent Gerald J. Griffin ("Griffin") that he and Hartley had manufactured phenyl-2-propanone ("P2P") and methamphetamine in the basement of Hartley's house, located at 403 Maplewood Drive, Plymouth, Pennsylvania. Keenan informed Griffin that he and Hartley had manufactured at least five to ten pounds of methamphetamine in Hartley's house, with the last manufacturing occurring in or about July 1991.
On July 21, 1992, a search warrant of Hartley's house was issued for any chemical or equipment used in the manufacturing of methamphetamine or P2P. On or about July 29, 1992, Griffin executed the search warrant and found a concealed room in Hartley's basement which was used as a laboratory for the manufacturing of methamphetamine. During this search, Griffin seized material which formed the basis of Hartley's indictment.
A criminal complaint was filed against Hartley on July 30, 1992. Hartley was charged with the following eight counts: conspiracy under 21 U.S.C. § 846 (Count 1); manufacture of methamphetamine under 21 U.S.C. § 841(a)(1) (Count 2); manufacture and maintaining a place for purpose of manufacturing controlled substance near a school under 21 U.S.C. § 860 (Count 3); maintaining a place for purpose of manufacturing methamphetamine under 21 U.S.C. § 856 (Count 4); manufacture and maintaining a place for purpose of manufacturing controlled substance near a school under 21 U.S.C. § 860 (Count 5); manufacture of marihuana under 21 U.S.C. § 841 (Count 6); manufacture and maintaining a place for purpose of manufacturing controlled substance near a school under 21 U.S.C. § 860 (Count 7); and criminal forfeiture under 21 U.S.C. § 853 (Count 8).
On December 2, 1992, Hartley pled guilty to Counts one through seven. Hartley also agreed, pursuant to Count eight, to forfeit any and all of his interest in the property at 403 Maplewood Drive.
Hartley's violations of the Act exposed him, inter alia, to a maximum penalty of life imprisonment and a mandatory minimum sentence of twenty years imprisonment. The United States District Court for the Eastern District of Pennsylvania sentenced Hartley to the mandatory minimum of 240 months imprisonment on Counts one through seven, and to ten years of supervised release. Pursuant to Count eight, Hartley was required to forfeit his property interests on his home. The district court also imposed financial penalties of $ 350 in assessments ($ 50 for each Count one through seven) and a $ 5,000 fine.
The United States Court of Appeals for the Third Circuit affirmed the district court's decision on October 25, 1993. On April 22, 1997, petitioner filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel at the time of his sentencing. Hartley argues that he is entitled to a new sentencing hearing, based on the errors by his counsel.
Respondent United States filed an answer to petitioner's motion on August 21, 1997. The government concedes that three of the eight counts on which petitioner was convicted and sentenced were unlawful and consequently, their convictions and sentences should be vacated. However, the government contends that the vacation of these counts does not warrant a new sentencing hearing. I will consider each of the three grounds on which petitioner bases his ineffective assistance of counsel claim seriatim.
The standard for an ineffective assistance of counsel claim was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). ...