The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant Roberto Mota-Herrera has filed this pro se motion pursuant to 28 U.S.C. § 2255. (doc. 126). In response to an Order notifying Mota-Herrera of the limitations for successive motions under § 2255 (doc. 127), Mota-Herrera filed an addendum containing additional claims. (doc. 128). The Government filed a brief in response (doc. 135) to our Order to show cause (doc. 131). Mota-Herrera then filed a brief in reply. (doc. 136). We will deny the § 2255 motion.
On March 8, 2006, Mota-Herrera pleaded guilty to conspiracy to distribute and possession with intent to distribute cocaine hydrochloride. (doc. 69). Mota-Herrera was sentenced to eighty-one months in prison after the Court awarded a two-level reduction pursuant to the safety valve provision and a three-level reduction for acceptance of responsibility. The sentence also included a twenty-five percent reduction pursuant to § 5K1.1 for substantial assistance to the Government. MotaHerrera's co-defendants received sentences of forty-eight and sixty-five months.
Mota-Herrera appealed his sentence, arguing that it was unreasonable pursuant to United States v. Booker, 543 U.S. 220 (2005), with respect to our consideration of the 18 U.S.C. § 3553(a) factors. Mota-Herrera also argued that the term of imprisonment violated his Eighth Amendment rights. On June 29, 2007, the Third Circuit, after granting defense counsel's motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), rejected both arguments and affirmed the sentence. (docs. 121, 123); United States v. Mota-Herrera, 238 Fed. Appx. 803 (3d Cir. 2007). Mota-Herrera filed this habeas motion on December 20, 2007, as well as an addendum on January 31, 2008.
Mota-Herrera's habeas motion raises a number of ineffective assistance of counsel claims and two additional claims. We will deny the motion without a hearing because the motion and the record conclusively show that Mota-Herrera is not entitled to relief. 28 U.S.C. § 2255; United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
A. Ineffective Assistance of Counsel Claims
Mota-Herrera contends that counsel provided ineffective assistance for the following reasons: (1) counsel failed to challenge the Government's motion recommending a twenty-five percent downward departure for providing substantial assistance; (2) counsel promised Mota-Herrera that he would receive a sixty-month sentence; (3) counsel failed to request consideration of Mota-Herrera's status as a deportable alien at sentencing; (4) counsel failed to request consideration of MotaHerrera's family ties and cultural assimilation at sentencing; (5) counsel failed to argue for recognition of Mota-Herrera's cooperation and substantial assistance within the 28 U.S.C. § 3553 factors; (6) counsel failed to fully explain the consequences of the plea agreement; and (7) counsel filed an Anders brief instead of pursuing meritorious claims on appeal. After summarizing the applicable law, we will discuss each claim.
In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth the test for ineffective assistance of counsel claims. Pursuant to Strickland's two-pronged test, a petitioner must show that counsel's representation fell below an objective standard of reasonableness and that the deficient representation was prejudicial. Id. at 688, 692.*fn1 "The proper measure of attorney performance" is "reasonableness under prevailing professional norms." Id. at 688. Counsel's errors must be "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Second, the defendant must show that counsel's deficient performance prejudiced his defense. Id. 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." Id. at 694. Finally, "judicial scrutiny of counsel's performance must be highly deferential" and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Lewis v. Mazurkiewicz, 915 F.2d 106, 111 (3d Cir. 1990) (quoting Strickland, 466 U.S. at 689).
The Strickland test extends to claims regarding counsel's performance on appeal. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), citing Smith v. Murray, 477 U.S. 527, 535-36 (1986). See also United States v. Mannino, 212 F.3d 835, 840 n.4 (3d Cir. 2000). With respect to the prejudice prong, the petitioner must show that "there is a reasonable probability that the result of the appeal would have been different had counsel's stewardship not fallen below the required standard." Mannino, 212 F.3d at 845.
Claims of ineffective assistance during the plea process also apply the Strickland test. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In evaluating the voluntariness of a plea taken by a defendant represented by counsel, a court looks to whether counsel's advice was within the range of competence required of an attorney in a criminal matter. Id. at 58-59. The prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Id. at 59. Prejudice requires a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. See also Scarbrough v. Johnson, 300 F.3d 302, 306 (3d Cir. 2002).
Mota-Herrera's first ineffective assistance of counsel claim concerns his twenty-five percent sentence reduction under § 5K1.1 of the Sentencing Guidelines. Mota-Herrera received this sentence reduction after the Government filed a motion recommending a downward departure based on his substantial assistance in the investigation of others. (doc. 94). He now contends that counsel was ineffective for failing to challenge the extent of the downward departure. (doc. ...