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November 14, 2005.

FRANK TODD McCLELLAN a/k/a Frank Neeszy, Petitioner,

The opinion of the court was delivered by: TERRENCE McVERRY, District Judge


Before the Court for disposition is a PETITION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY ("Petition") filed by Frank Todd McClellan (Crim. Doc. No. 48). The matter has been fully briefed. See GOVERNMENT'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION FILED PURSUANT TO 28 U.S.C. § 2255 ("Response") (Crim. Doc. No. 50) and PETITIONER'S BRIEF IN SUPPORT OF PETITION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255 ("Brief") (Crim. Doc. No. 67).

The Court conducted an evidentiary hearing on the Petition on June 27, 2005. Petitioner Frank Todd McClellan ("McClellan") was represented by James W. Krause, Esquire at the hearing. McClellan and Thomas Patton, Assistant Federal Public Defender ("Mr. Patton"), testified at the hearing. No other witnesses testified.

  The central issues at the hearing were whether Mr. Patton, who represented McClellan after he entered a plea of guilty and during the sentencing phase of the underlying criminal proceeding, rendered ineffective assistance of counsel due to his alleged failure to: 1) adequately prepare for the sentencing hearing, 2) challenge the application of the career offender guideline, 3) argue in favor of a downward departure from the career offender guideline, and 4) file a notice of appeal after the sentencing hearing, contrary to the constitutional protections afforded by Strickland v. Washington, 466 U.S. 668 (1984) and Roe v. Flores-Ortega, 528 U.S. 470 (2000). The testimony from the § 2255 hearing has been transcribed. The Court will discuss primarily those basic facts which are relevant to the subject motion. Based on the testimony and evidence presented at the hearing and the applicable law, the Court enters the following findings of fact and conclusions of law.


  1. On January 8, 2003, a Grand Jury returned an Indictment which charged McClellan with five counts of possession with intent to distribute and distribution of heroin, in violation of Title 21, United States Code, section 841(a)(1) and 841(b)(1)(C). McClellan pled not guilty to the charges and was detained at the Allegheny County Jail.

  2. McClellan was initially represented by Crystina M. Kowalczyk, Assistant Federal Public Defender ("Ms. Kowalczyk"), but later privately retained the services of Attorney Warner Mariani ("Attorney Mariani"). On May 7, 2003, while represented by Attorney Mariani, McClellan pled guilty to Count Two of the Indictment pursuant to a written plea agreement. The plea agreement did not require McClellan to waive his appellate or section 2255 rights.

  3. Shortly thereafter, the relationship between McClellan and Attorney Mariani deteriorated, and Attorney Mariani sought to withdraw his appearance. On May 29, 2003, the Court permitted Attorney Mariani to withdraw his appearance and appointed the Federal Public Defender to represent McClellan. The Federal Public Defender assigned Mr. Patton*fn1 to represent McClellan. Mr. Patton works primarily out of the Erie branch office of the Federal Public Defender's Office, and was required to travel to Pittsburgh to meet with McClellan. Hrg. Tr. at 6.

  4. On or about May 27, 2003, McClellan, acting pro se, sent two letters to the Court in which he expressed, inter alia, his desire to withdraw his plea of guilty. See Crim. Doc. No. 29. On October 23, 2003, the Court conducted a status conference with the attorneys regarding McClellan's letters.*fn2 The Court held a second status conference with counsel and Mr. McClellan on November 14, 2003. At the second status conference McClellan represented on the record that based on the advice of counsel*fn3 he did not wish to withdraw his guilty plea, that he wished to proceed with the sentencing hearing as scheduled, and that he was satisfied with Mr. Patton's representation. See Crim. Doc. No. 63 at 15-16. An apparent primary consideration in McClellan's decision not to seek to withdraw his guilty plea was the government's discretion to file an "Information to establish prior conviction" pursuant to Title 21, United States Code, section 851. See Hrg. Tr. at 12-13. If convicted, the pre-trial filing of said Information would have substantially increased McClellan's potential sentence. See id. at 12.

  5. Mr. Patton was assisted in his representation of McClellan by W. Penn Hackney ("Mr. Hackney") and Jay J. Finkelstein ("Mr. Finkelstein"), Assistant Federal Public Defenders, as well as Richard Villa ("Mr. Villa"), an investigator for the Federal Public Defender's Office. Hrg. Tr. at 35, 39, 58. Mr. Hackney attended the November 14, 2003 status conference and the sentencing hearing. See Crim. Doc. Nos. 47 & 63.

  6. Mr. Patton thoroughly researched McClellan's case and the potential arguments available to him prior to sentencing. First, Mr. Patton obtained and reviewed Mr. Mariani's file. Hrg. Tr. at 11. Mr. Patton also met with McClellan after the Presentence Investigation Report ("PSI") was produced, but prior to sentencing, "to go over it with him to determine if we would file any objections." Hrg. Tr. at 13; see also id. at 14. Based on his review of the PSI, Mr. Patton did not believe "that there were any objections that could be filed to the calculation of the offense level and criminal history calculations under the [PSI]." Id. at 13-14.*fn4

  7. Mr. Patton obtained the records of McClellan's prior convictions and determined whether said convictions could be used to qualify McClellan for career offender status. Hrg. Tr. at 16, 18-19. Based upon his investigation, Mr. Patton concluded that "[t]he PSI correctly calculates Mr. McClellan's guideline imprisonment range as 151-188 months." Defendant's Position with Respect to Sentencing Factors at unnumbered 1 (Crim. Doc. No. 41). Mr. Patton also met with McClellan and discussed the application of the career offender guideline with him "on numerous occasions" prior to sentencing. Hrg. Tr. at 19.

  8. United States Sentencing Guidelines § 4A1.3(b)(1) provides that "[i]f reliable information indicates that the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes, a downward departure may be warranted." Mr. Patton did not argue at sentencing that McClellan's prior criminal history overstated the seriousness of his criminal history.

  9. Mr. Patton was well aware of the availability of a downward departure under section 4A1.3(b)(1), but "did not argue it because [he] did not feel . . . that it would be something we could be successful on." Hrg. Tr. at 17. A review of the PSI confirms that such an ...

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