The opinion of the court was delivered by: TERRENCE McVERRY, District Judge
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF COURT
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.
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 ...