The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant, Eric Craft, has filed a motion under 28 U.S.C. § 2255 to vacate his conviction and sentence after he pled guilty to a violation of 18 U.S.C. § 924(j), making it illegal to cause the death of another person through the use of a firearm during a drug-trafficking offense. He was sentenced to 480 months' imprisonment.
Distilling the claims from three documents (doc. 116, 118 and 121), Defendant raises the following grounds for relief. First, trial counsel coerced Defendant into pleading guilty and into cooperating with the promise that he would be convicted of a lesser offense and his mother-in-law and wife would receive probation. Defendant was also told if he did not plead guilty, he and his family members would spend a very long time in prison. Second, trial counsel failed to object to the use at sentencing of incriminating statements Defendant had made even though in January 2002 the prosecutor had agreed in writing that any statements Defendant made while cooperating would not be used against him. Third, the plea was involuntary because Defendant pled guilty in return for a "lesser prison term." (Doc. 116, ninth page). Fourth, trial counsel was ineffective in not being prepared to argue sentencing objections. Fifth, counsel was ineffective in not arguing the ambiguity of Defendant's plea; the written plea agreement required him to plead guilty to a violation of section 924(j) but the information charged him with a violation of section 924(j)(2), the part that incorporates manslaughter. Sixth, trial counsel was ineffective in not knowing the difference between section 924(j)(1) and 924(j)(2); they define the separate crimes of murder and manslaughter. Seventh, the record does not reveal whether the court gave notice that it was departing upward in its sentencing calculation.*fn1
Counsel was appointed to represent Defendant at a hearing on the 2255 motion held on July 21, 2006. The following background is taken from the record of the criminal case and that hearing.
On January 16, 2002, Defendant was charged in a two- count indictment with making false statements in connection with the acquisition of firearms, in violation of 18 U.S.C. § 922(a)(6) and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On March 6, 2002, Defendant was charged in a sixteen-count superseding indictment with: conspiracy to distribute fifty grams or more of crack cocaine and 200 grams or more of heroin, in violation of 21 U.S.C. § 846; distribution of fifty grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); distribution of 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); two counts of carrying or using a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c); making false statements in connection with the acquisition of firearms, in violation of 18 U.S.C. § 922(a)(6); possession of firearms by an armed career criminal, in violation of 18 U.S.C. § 922(g)(1); conspiracy to make false statements in connection with the acquisition of firearms, in violation of 18 U.S.C. § 371; and seven counts of making false statements in connection with the acquisition of firearms, all in violation of 18 U.S.C. § 922(a)(6). Defendant's wife and mother-in-law were also named in this indictment.
Defendant pled not guilty to the superseding indictment. The United States Attorney's Office then approached his lawyer to see if Defendant would engage in an off-the-record proffer to discuss, among other things, the homicide of Lavelle Gamble, a known crack-cocaine drug dealer. (Doc. 106, guilty-plea transcript, p. 9). In April 2001, Gamble's body had been found in a car in Harrisburg with a bullet in the head. (Id.).
At the 2255 hearing, Defendant's lawyer testified that he advised Defendant that if he had anything to do with the murder not to engage in the proffer, but Defendant "was adamant" that he was not involved and wanted to cooperate to reduce what Defendant believed was a sentence of some twenty years on the plea offer then existing on the superseding indictment. (Doc. 138, 2255 hearing transcript, p. 58). For his part, Defendant testified that he agreed to make a proffer because he had been offered a deal of about twenty-three years on the superseding indictment but did not want to accept it. He understood the government wanted his cooperation so that they could get Jeffrey Holland and Ricky Holland, two others involved with him. In return, Defendant's wife would get probation and Defendant would be sentenced to "a lesser offense" of some unspecified kind. (Doc. 138, p. 11).
On April 16, 2002, Defendant and his lawyer signed the proffer agreement. In pertinent part, the agreement provided that "no statements made by [Defendant] during the proffer/discussion will be used against him in the Government's case-in-chief should [he] be indicted on charges related to the subject matter of the proffer/discussion." (2255 hearing, Def.'s Ex. 1). Defendant testified that his lawyer told him that under the agreement, any information he provided could only be used against him if he did not plead guilty. (Doc. 138, p. 41). Counsel denied making that statement. (Id., p. 59). Counsel testified that he explained the proffer by saying it allowed the government to use Defendant's statements in rebuttal or against contradictory statements Defendant might make on the stand, or to investigate unknown crimes Defendant admitted to during the proffer. (Id., pp. 59-60).
At the first proffer meeting, Defendant said he was present at the murder scene but that a person named Ernest Hedgesmith had killed Gamble. At a subsequent meeting, he said that Jeffrey Holland had committed the murder. At the final meeting, Defendant admitted being the killer. (Id., pp. 48-50; 60-61).
On September 11, 2002, the defendant executed a plea agreement containing the following relevant terms. Defendant agreed to plead guilty to a superseding information alleging a violation of 18 U.S.C. § 924(j), causing the death of another by use of a gun during a crime of violence or drug-trafficking offense. (Plea agreement, ¶ 1). Defendant acknowledged the maximum penalty for the offense was life imprisonment, (id.), and that the court was free to impose any sentence up to the maximum. (Id., ¶ 19). The government could provide the probation office "all information in its possession which the United States deems relevant regarding the defendant's background, character, cooperation, if any, and involvement in this or other offenses." (Id., ¶ 15). The government could also present at sentencing "all relevant information with respect to the defendant's background, character and conduct including the conduct that is the subject of the charges which the United States has agreed to dismiss . . ." (Id., ¶ 18). Defendant agreed to cooperate with the government. (Id., ¶ 14). In return, if the government decided that the defendant had provided "substantial assistance" within the meaning of 18 U.S.C. § 3553(e), it would "request the Court to depart below any applicable mandatory minimum range and/or the guideline range when fixing a sentence . . . ." (Id.). The agreement contained a merger clause, specifying that it was "the complete and only" plea agreement between the parties, that it "supersede[d] all prior understandings, if any, whether written or oral," and that it could not be modified except in writing. (Id., ¶ 37). The agreement also specified that "[n]o other promises or inducements" had been made to Defendant nor "any predictions or threats have been made in connection with this plea." (Id.). At the time the agreement was signed, there was still a plea offer open for twenty to thirty years on the sixteen-count superseding indictment. (Doc. 138, pp. 76-77).
On the same day, the superseding information was filed. It charged Defendant with the use of a .380-caliber handgun to murder Lavelle Gamble during the unlawful distribution of crack cocaine, "in violation of Title 18, United States Code, Section 924(j); Section 2."
At his 2255 hearing, Defendant testified that his lawyer told him when discussing the plea agreement he would not be sentenced for first-degree murder because Defendant had basically given the government the case. (Doc. 138, pp. 15-16). It was explained to him that signing the agreement meant he was going to get less time than the twenty-three years being offered on the sixteen-count superseding indictment. (Id., p. 23). His lawyer also did not go over the paragraphs of the plea agreement with him. (Id., p. 16). Craft's lawyer denied telling him that if he pled guilty to killing Gamble, he would get a better sentence than the one being offered on the superseding indictment, (id., p. 62-630, but that he might get a break at sentencing if he cooperated. (Id., p. 63). Contrary to Defendant's representations, counsel did go through each and every paragraph of the plea agreement. (Id., p. 64). Additionally, although Defendant wanted manslaughter now that he had "put himself in the murder," (id., p. 63), counsel explained it would be either first- or second-degree murder, with the defense arguing for second-degree. (Id.). Finally, counsel advised Defendant that he was not going to get a reduction for substantial cooperation because he had "caused himself to be a person that couldn't be relied on by the Government." (Id.). Nonetheless, Defendant signed the plea agreement. ...