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March 28, 2001


The opinion of the court was delivered by: Hutton, J.


Currently before the Court is Edwin Rodriguez's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Docket No. 481), the Government's Memorandum in Opposition to said Motion (Docket No. 486), and the Petitioner's Supplemental Submission (Docket No. 493).


On November 20, 1996, following a guilty verdict, a sentencing hearing was held. As a result, the Court sentenced Edwin Rodriguez to a term of imprisonment of 360 months, a ten year term of supervised release, a fine of $5,000, and a special assessment of $50. The forfeiture count was dismissed as to Petitioner.

Following the imposition of sentence, Petitioner filed an appeal of his conviction and sentence to the United States Court of Appeals for the Third Circuit, Number 97-1937. On October 26, 1998, the Judgment of the Court was affirmed. On February 21, 1999, Petitioner's Writ of Certiorari was denied.

As a result, Petitioner filed the instant Motion pursuant to 28 U.S.C. § 2255 raising three grounds for relief. First, Petitioner claims that he was denied his right to testify in his own defense at trial because counsel refused to allow him to take the witness stand. See Pet'r Mem. of Law at 1. Second, Petitioner asserts that his counsel was ineffective for failing to challenge the quantity of drugs for which Petitioner was responsible. See Pet'r Mem. of Law at 2. Third, Petitioner asserts that his prior drug conviction was improperly used to enhance his current sentence. See Pet'r Mem. of Law at 4.

On July, 27, 2000, pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), the Petitioner was given the opportunity to amend his Motion to include all cognizable claims, or proceed with the Motion as filed. The Petitioner responded by filing a Supplemental Submission which included two additional claims based upon the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The Petitioner asserts that in light of Apprendi, 21 U.S.C. § 841(b) is unconstitutional and therefore, his conviction and indictment under that statute must be vacated. See Pet'r Supplemental Submission at 4. In addition, he argues that because drug quantity was never submitted to the jury, Apprendi requires that his indictment be dismissed. See Pet'r Supplemental Submission at 4.


A prisoner who is in custody pursuant to a sentence imposed by a federal court who believes "that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255 (West 2001). The district court is given discretion in determining whether to hold an evidentiary hearing on a prisoner's motion under section 2255. See Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In exercising that discretion, the court must determine whether the petitioner's claims, if proven, would entitle him to relief and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Government of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d Cir. 1994).

Prior to addressing the merits of the petitioner's claims, the court should consider if they are procedurally barred. See United States v. Essig, 10 F.3d 968, 976 (3d Cir. 1993). A petitioner under section 2255 is procedurally barred from bringing any claims on collateral review which could have been, but were not, raised on direct review. See Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 1610 (1998) (exception to procedural default rule for claims that could not be presented without further factual development); United States v. Biberfeld, 957 F.2d 98, 104 (3d Cir. 1992). Once claims have been procedurally defaulted, the petitioner can only overcome the procedural bar by showing "cause" for the default and "prejudice" from the alleged error. See Biberfeld, 957 F.2d at 104 (stating "cause and prejudice" standard). In this context, "cause" consists of "something external to the petitioner, something that cannot be fairly attributable to him," and "prejudice" means that the alleged error "worked to [the petitioner's] actual and substantial disadvantage." See Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 2566 (1990) (defining "cause"); United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1595 (1982) (defining "prejudice").

A. Ineffective Assistance of Counsel

The Petitioner's first two claims surround allegations that his counsel was ineffective in violation of his sixth amendment right to reasonably effective assistance of counsel. See U.S. Const. amend. VI. As these claims were never raised on direct appeal, they would normally be considered barred from collateral review. However, because an ineffective assistance of counsel claim often relies on matters outside of the factual record on appeal and the defendant is often represented on appeal by the same counsel as at trial, courts have held that "in general an ineffective assistance claim which was not raised on direct appeal is not deemed procedurally defaulted for purposes of habeas review." United States v. Garth, 188 F.3d 99, 107 n. 11 (3d Cir. 1999) (citing United States v. DeRewal, 10 F.3d 100, 103 (3d Cir. 1993). A claim of ineffective assistance of counsel is governed by the standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984).

In Strickland, the Supreme Court stated that an ineffective assistance of counsel claim requires the defendant to show that their counsel's performance was defective and that the deficient performance prejudiced the defense. See id., 104 S.Ct. at 2064. Counsel's performance will be measured against a standard of reasonableness. In analyzing that performance, the court should make "every effort . . . to eliminate the distorting effects of hindsight," and determine whether "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." See id. at 690, 104 S.Ct. at 2066. Once it is determined that counsel's performance was deficient, the court must determine if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694, 104 S.Ct. at 2068. "A reasonable probability is ...

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