The opinion of the court was delivered by: Robreno, District Judge.
On July 10, 1995, petitioner Harold J. McCoy, III, pleaded
guilty to a two-count superseding indictment charging him with
conspiracy to interfere with interstate commerce by robbery and
interference with interstate commerce commit by robbery in
violation of 18 U.S.C. § 1951 (The Hobbs Act). On May 30, 1996,
the court sentenced McCoy to 126 months imprisonment, three years
supervised release, restitution of $5,000, and a special
assessment of $100.*fn1
On June 11, 1997, this court further reduced McCoy's term of
imprisonment to 102 months after considering the Government's
motion to reduce McCoy's sentence pursuant to Rule 35 of the
Federal Rules of Criminal Procedure. The Third Circuit Court of
Appeals affirmed the conviction and sentence.
On December 15, 1997, McCoy, acting pro se, filed the instant
motion pursuant to 28 U.S.C. § 2255 to vacate the judgment of
conviction and sentence. It is the essence of McCoy's argument
that his counsel was ineffective for failing to explain to him
the full effect of his guilty plea. Upon review of the record and
after an evidentiary hearing, the court will deny McCoy's motion
finding that counsel was not ineffective because McCoy's guilty
plea was sufficiently informed and voluntary.
McCoy bases his instant motion upon the following summarized
(1) counsel rendered ineffective assistance by
failing to inform defendant about the ramifications
of signing the plea agreement, failing to move for
suppression of testimony before the grand jury,
failing to challenge the plea agreement after
learning that the Government allegedly had petitioner
sign it without the benefit of counsel, and failing
to inform the court that an agreement was allegedly
made between defendant and the Government on February
(2) that the Government violated his Fifth and Sixth
Amendment rights by meeting with petitioner without
the presence of his counsel; and
(3) that the Government violated his Fifth Amendment
rights by using the February agreement, compelling
petitioner to make incriminating statements, and then
not honoring it.
See Petition at 5, attached Mem. at ii. After numerous
subsequent pro se filings, the court appointed counsel to
represent McCoy in this matter. Limited discovery was conducted
and an evidentiary hearing was held, after which the parties were
instructed to file supplemental submissions, that is, proposed
findings of fact and conclusions of law.*fn2 This memorandum
represents the court's findings of fact and conclusions of law.
II. FACTUAL AND PROCEDURAL BACKGROUND
On January 12, 1995, a complaint and warrant were issued
against McCoy and three others charging McCoy with conspiracy to
commit robbery and the commission of a robbery of a Texas jewelry
that time, the Government was aware of McCoy's involvement in
three jewelry store robberies, one of which was the Texas store.
After McCoy's initial appearance, the court appointed Michael D.
Shepard, Esquire, to represent McCoy. McCoy and Shepard met
several times in the month of February, 1995 to discuss his case.
On or about February 22, 1995, McCoy entered into a proffer
agreement with the Government (the "February 22, 1995 agreement"
or the "proffer agreement") that stated, in pertinent part:
First, no statements made by you or your client, or
other information provided by you or your client
during the "off-the-record" proffer, will be used
directly against your client in any criminal case.
See Appendix to Petitioner's Supp. Mem. in Support of § 2255
Mot. [hereinafter "App."] at 253. The proffer agreement was
signed by McCoy, Shepard, and the Assistant United States
Attorney ("AUSA") on the case at that time, Christopher R. Hall.
Id. at 254. Shepard explained that, at that time:
I told Mr. McCoy that any statements he makes to the
Government pursuant to this proffer agreement won't
be used against him directly in any criminal case. If
he went to trial, they could not use that information
against him. However, I also explained to him that —
because the Government would not agree to it, that
any information, if we're going to go along this
route for cooperation and entering into a plea
agreement, he's going to be a cooperating witness,
that the Government will use the information to
calculate the sentencing guidelines.
Evidentiary Hearing Tr. 3/16/99 at 12. Shepard testified that he
told McCoy this information on or about February 22, 1995 and
that he also touched upon that subject when he first met with
McCoy at prison earlier in February of 1995.*fn3 Id. Shepard
generally took notes and created memoranda for the file regarding
his conversations with McCoy. See App. 144-47, 153-237, 246-49.
However, none of Shepard's notes or memoranda regarding those
conversations occurring prior to McCoy's entry of a guilty plea