United States District Court, M.D. Pennsylvania
September 26, 2005.
UNITED STATES OF AMERICA,
EDDIE SIMMS, Petitioner.
The opinion of the court was delivered by: YVETTE KANE, District Judge
MEMORANDUM AND ORDER
Before this Court is Petitioner's pro se motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
(Doc. No. 60.) Upon due consideration of this motion and the
government's response thereto, the Court finds that Petitioner is
not entitled to § 2255 relief under any the grounds asserted in
the petition. The Court will therefore dismiss Petitioner's
petition for writ of habeas corpus.
On May 17, 2000, in accordance with a written plea agreement,
Petitioner pled guilty to a superceding information alleging two
counts of Interstate Travel in Aid of Racketeering, in violation
of 18 U.S.C. § 1952(a)(3). This Court sentenced Petitioner to 60
months of imprisonment on each count, to be served consecutively,
and 24 months of supervised release for each count, to be served
concurrently. Petitioner appealed to the United States Court of
Appeals for the Third Circuit, which in an unpublished decision
dated June 20, 2003, affirmed this Court's judgment.
II. Standard of Review An evidentiary hearing is required by § 2255 "unless the motion
and files and records of the case conclusively show that the
prisoner is entitled to no relief." 28 U.S.C. § 2255; see
also U.S. v. Baynes, 622 F.2d 66, 68 (3d Cir. 1980). Where
the record affirmatively indicates that a Petitioner's claim for
relief is without merit, the claim may be decided on the record
without a hearing. See Government of Virgin Islands v.
Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); Page v. United
States, 462 F.2d 932, 933 (3d Cir. 1972). Thus, if the record,
supplemented by the trial judge's personal knowledge,
conclusively negates the factual predicates asserted in support
of a § 2255 motion, or if the movant would not be entitled to
relief as a matter of law even if the factual predicates as
alleged in the motion are true, it is not an abuse of discretion
to elect not to conduct an evidentiary hearing. See Nicholas,
759 F.2d at 1075. "[B]ald assertions and conclusory allegations
do not afford a sufficient ground for an evidentiary hearing."
Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987).
Petitioner raises two claims in support of his motion to
vacate, set aside, or correct sentence: (1) that his sentence
violates Blakely v. Washington, 124 S. Ct. 2531 (2004); and (2)
that he was denied effective assistance of counsel. (Doc. No.
66.) The Court will address each claim in turn.
Petitioner argues that his sentence is unconstitutional in
light of Blakely. In Blakely, the Supreme Court held that a
court may not sentence a criminal defendant to a term of
imprisonment beyond a sentence that can be imposed "solely on the
basis of facts [other than a prior conviction] reflected in the jury verdict or admitted by the defendants."
124 S. Ct. at 2537. Petitioner's reliance upon the Blakely decision
is misplaced as the Supreme Court in Blakely specifically
stated that its decision did not apply to the Federal Sentencing
Guidelines. Blakely, 124 S. Ct. 2538 n. 9. However, in the
interest of justice, the Court construes Petitioner's argument as
encompassing the more recent Supreme Court ruling in United
States v. Booker, 125 S. Ct. 738 (2005). In Booker, the
Supreme Court extended its holding in Blakely to the Federal
Sentencing Guidelines and ruled that the guidelines themselves
were unconstitutional insofar as they were mandatory.
125 S. Ct. at 750.
The Supreme Court has held that a new rule of criminal
procedure will not be applicable to those cases which have become
final before the new rule is announced, such as this case, unless
the rule qualifies under one of two narrow exceptions. Teague v.
Lane, 489 U.S. 288, 310 (1989). Under the first exception, a new
rule applies retroactively when it "places certain kinds of
primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe." Id. at 307. Under
the second exception, a new rule applies retroactively if it is a
watershed rule of criminal procedure implicating the fundamental
fairness and accuracy of the criminal proceeding. Id. at
The United States Court of Appeals for the Third Circuit
recently concluded that the rule announced in Booker, is
subject to the Teague bar and does not apply retroactively to
cases on collateral review. Lloyd v. United States,
407 F.3d 608 (3d Cir. 2005). The court determined that the Booker rule
does not place certain kinds of primary, private individual
conduct beyond the power of the criminal law-making authority to
proscribe. Id. at 614, n. 5 (internal citations omitted). In
addition, the court found that the Booker rule is not a
watershed rule of criminal procedure implicating the fundamental
fairness and accuracy of the criminal proceeding. Id. at 616.
Accordingly, the Third Circuit held that "Booker does not apply retroactively to initial
motions under § 2255 where the judgment was final as of January
12, 2005, the date Booker issued." Id. at 616. As Petitioner's
conviction became final prior to Booker, this claim must be
B. INEFFECTIVENESS OF COUNSEL
Petitioner also asserts that he was denied effective assistance
of counsel in advising him with regards to his plea agreement.
(Doc. No. 66.) The Supreme Court established a two-prong test in
determining whether counsel was so ineffective as to constitute a
violation of a defendant's right to counsel. Strickland v.
Washington, 466 U.S. 668, 687 (1984). "A petitioner must show
(1) that counsel made errors so serious that counsel's
representation fell below an objective standard of
reasonableness, and (2) that such failure resulted in prejudice
so as to deprive the petitioner of a fair trial, that is, a trial
whose result is reliable." Zettlemoyer v. Fulcomer,
923 F.2d 284, 295 (3d Cir. 1991) (citing Strickland,
466 U.S. at 687-688). Both prongs must be satisfied before a conviction is
overturned based on ineffectiveness of counsel. Strickland,
466 U.S. at 687.
The first prong of Strickland is met if counsel's performance
"fell below an objective standard of reasonableness." Id. at
688. "Judicial scrutiny in this regard, however, is highly
deferential." Affinito v. Hendricks, 366 F.3d 252, 258 (3d Cir.
2004). See also Strickland, 466 U.S. at 689. The Court in
It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable. A fair
assessment of attorney performance requires that
every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at
the time. Strickland, 466 US. at 689 (internal citation omitted).
Therefore, the Court "must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance." Id. Counsel cannot be found
ineffective for failing to raise a claim that lacks merit.
Singletary v. Blaine, 89 Fed. Appx. 790, 794 (3d Cir. 2004)
(non-precedential opinion) (citing Moore v. Deputy
Commissioner of SCI-Huntingdon, 946 F.2d 236, 245 (3d Cir.
1991)). Although counsel has a duty to investigate, counsel may
reasonably decide that certain investigation is unnecessary.
Strickland, 466 U.S. at 691.
The second Strickland prong may be reached only after the
first is demonstrated. Affinito, 366 F.3d at 258. To establish
prejudice requires a showing that, but for alleged deficiencies
of counsel, the outcome of the case would have been different.
Hess v. Mazurkiewicz, 135 F.3d 905, 909 (3d Cir. 1998). "The
defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694.
Petitioner asserts that he was denied effective assistance of
counsel when his former counsel failed to fully advise Petitioner
that the term of supervised release potentially carries with it a
maximum term of imprisonment beyond that to which he agreed.
(Doc. No. 60.) Although Petitioner asserts this claim under the
guise of ineffectiveness of counsel, Petitioner seems to be
rearguing that his guilty plea was not knowing, voluntary, and
intelligent because he was not advised that the guidelines
included a mandatory two-year term of supervised release in
addition to the incarceration. This issue was argued by
Petitioner on direct appeal and was fully addressed by the Third
Circuit, who has already ruled against Petitioner in this regard. Section 2255 generally may not
be employed to relitigate questions which were properly raised
and considered on direct appeal. U.S. v. DeRewal, 10 F.3d 100,
105 (3d Cir. 1993). Moreover, Petitioner was advised of the
mandatory two-year term of supervised release during the plea
colloquy and acknowledged that he understood that the charges to
which he was pleading guilty included a term of supervised
release to be determined by the court. Accordingly, Petitioner's
claim of ineffective counsel is meritless and will be denied.
For the above mentioned reasons, the Court finds that
Petitioner is not entitled to the relief requested as a matter of
law on the basis of any of the claims set forth in the instant
motion to vacate, set aside, or correct sentence. Because
Petitioner is not entitled to relief even if the factual
predicates as alleged in the motion are true, an evidentiary
hearing need not be conducted. Accordingly, Petitioner's motion
to vacate, set aside, or correct sentence will be denied. (Doc
No. 60.) V. Order
AND NOW, this 26th day of September, 2005, IT IS HEREBY
ORDERED THAT Petitioner's 28 U.S.C. § 2255 motion to vacate, set
aside, or correct sentence (Doc. No. 60) is DENIED.
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