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
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
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 ...