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U.S. v. SOTO

May 14, 2001


The opinion of the court was delivered by: Van Antwerpen, District Judge.



On July 6, 1999, Defendant Juan Soto ("Defendant") was indicted by the Grand Jury and charged with one count of possession with intent to distribute more than five grams of cocaine base ("crack") and one count of possession with intent to distribute cocaine powder, in violation of 21 U.S.C. § 841(a)(1), as well as criminal forfeiture under 21 U.S.C. § 853. On August 4, 1999, an information was filed charging that on December 12, 1996 the Defendant was sentenced to 1 to 2 years imprisonment following his conviction on felony drug charges in the Court of Common Pleas of Berks County, Pennsylvania.*fn1 On August 31, 1999, the Defendant and the Government entered into a written plea agreement.*fn2 Following an extensive colloquy in open court, we accepted defendant's plea of guilty to both counts on September 2, 1999. At that time we asked the Defendant about his prior convictions and sentence and he acknowledged his prior convictions and prison sentence.*fn3 The Government fully explained the plea agreement on the record, including the cooperation provisions. (See Tr. 9/2/99, at 8-10.) This included information about a motion for downward departure.*fn4 The Defendant acknowledged on the record that the Government's explanation represented the entire plea agreement and that no additional promises or representations had been made to him. (See Tr. 9/2/99, at 11-12.) We also explained that any objections to the presentence report had to be raised within a certain time limit.*fn5

On November 14, 1999 a presentence report was issued which set forth Defendant's prior convictions and sentence in Berks County and the fact that Defendant was represented by counsel. No objections were filed to the presentence report and at sentencing on January 28, 2000 we confirmed with the defense that there were no objections to the presentence report.*fn6 We also addressed the Defendant in order to give him an opportunity to object and be heard. He confirmed his attorney's statements and said nothing else.*fn7 On January 28, 2000, the Defendant was sentenced by us to a term of imprisonment of 120 months, a special assessment of $200, supervised release for 8 years, and forfeiture in the amount of $1,583. At the time of this sentence, we informed Defendant about his appellate rights. (See Tr. 1/28/00, at 16.) No appeal was ever taken.

On February 21, 2001, more than one year after his sentence had been imposed. Defendant filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.*fn8 In the February 21, 2001 filing, Defendant raised 2 claims: (1) that the Government allegedly breached the plea agreement by not contacting him after the date of sentencing for purposes of obtaining his cooperation; and (2) that Defendant's counsel, Wendell Wylie, Jr., Esquire, was ineffective in allegedly failing to file a notice of appeal on Soto's behalf.

On March 8, 2001, this Court entered an Order under United States v. Miller, 197 F.3d 644 (3d Cir. 1999). In response, on April 6, 2001, Defendant filed a Motion to Proceed with § 2255 Petition and Motion for Leave to Amend, which, in addition to the issues described above, raised the following additional claims: (3.) that counsel was ineffective in allowing petitioner to plead guilty to an indictment that did not charge an offense and (4.) that the court failed to comply with the mandatory requirement that the Court ask the defendant whether he affirms or denies his prior conviction, and that counsel was ineffective in failing to raise this issue.


The right to counsel is created under the Sixth Amendment of the United States Constitution. This right, deemed fundamental by the Supreme Court, cannot be denied absent an actual and intentional waiver. See Wheat v. United States, 486 U.S. 153, 162, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The Supreme Court has established a two-prong test to establish a claim of ineffective assistance of counsel requiring that a petitioner show: (1) that counsel's conduct was deficient, falling "outside the wide range of professionally competent assistance," and (2) that petitioner was prejudiced as a result of that deficient conduct. United States v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1993) (citing Strickland v. Washington, 466 U.S. 668, 687, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

To satisfy the deficiency prong, a petitioner must show that the lawyer's conduct was definitively below an objective standard of reasonableness. See Strickland, 466 U.S. at 688, 104 S.Ct. 2052. In evaluating such a claim, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. We may not use the benefit of hindsight to second-guess tactical decisions made by an attorney, unless those decisions were unreasonable. See id. at 690, 104 S.Ct. 2052; Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir. 1987) ("An attorney is presumed to possess skill and knowledge in sufficient degree to preserve the reliability of the adversarial process and afford his client the benefit of a fair trial. Consequently, judicial scrutiny of an attorney's competence is highly deferential."). It follows that the mere fact that a tactic might in retrospect appear unsuccessful does not necessarily indicate that it was unreasonable. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

The American Bar Association Standards serve as a guideline in determining the reasonableness of an attorney's performance. See Government of the Virgin Islands v. Weatherwax ("Weatherwax I"), 20 F.3d 572, 579 (3d Cir. 1994), rev'd on other grounds, Government of Virgin Islands v. Weatherwax ("Weatherwax II"), 77 F.3d 1425 (3d Cir. 1996); see also Strickland, 466 U.S. at 688, 104 S.Ct. 2052. One of the most useful standards in this context is ABA Standard for Criminal Justice § 4-5.2 (3d ed. 1993), "Control and Direction of the Case," which dictates what decisions ultimately are to be made by a defendant and which are to be left to a defendant's attorney. Specifically, strategic and tactical decisions such as which witnesses to call, whether to conduct cross-examination, and what trial motions to make are within the province of the attorney after consultation with the client. See ABA Standard for Criminal Justice § 4-5.2(b). The Commentary thereto states that when the attorney in question makes such strategic or tactical decisions, "[o]nly when [his or her] behavior revealed ineptitude, inexperience, lack of preparation or unfamiliarity with basic legal principles [will these] actions amount to ineffective assistance of counsel." Weatherwax I, 20 F.3d at 579 (citing ABA Standard for Criminal Justice commentary at 4.67-68). If a decision falls within the realm of the attorney's "strategic decision," we will find that the decision constituted ineffective assistance only if it was inept or incapable of interpretation as sound, or if the attorney failed to consult with his or her client.

Once this first prong has been established, a petitioner must also show that the deficient performance "deprived the defendant of a trial whose result is reliable" by demonstrating a reasonable probability that, but for the attorney's challenged conduct, there would have been a different outcome. DeRewal, 10 F.3d at 104 (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We must therefore determine whether any error affected the adversarial balance so substantially that the court proceedings are rendered suspect. See Lockhart v. Fretwell, 506 U.S. 364, 368-69, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).


A. Timeliness

The limitation period shall run from the latest of —

(1) the date on which the judgment of conviction ...

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