The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
On May 11, 2005, a five-count indictment was lodged against Kelin Manigault. On November 3, 2005, Defendant pleaded guilty to Counts II and V pursuant to a plea agreement. A presentence report was prepared which revealed that Defendant had convictions for drug trafficking and a separate conviction for recklessly endangering another person in Dauphin County Court of Common Pleas to docket number CP 22CR 3590-1998 (Presentence Report at ¶¶ 23, 25, 26). The presentence report found that the defendant qualified as a career offender under U.S.S.G. § 4B1.1. At sentencing, trial counsel challenged whether defendant's conviction for recklessly endangering qualified as a crime of violence and, therefore, whether he was a career offender. This court denied the objection and proceeded to sentence Defendant.
On March 21, 2006, Defendant appealed the judgment of conviction to the United States Court of Appeals for the Third Circuit which assigned the appeal to docket number 06-2024. Defendant raised three grounds, including the designation as a career offender. The conviction was affirmed on April 13, 2007. The court of appeals in its opinion specifically held that the charge of reckless endangering another person under 18 Pa. Cons. Stat. Ann. § 2705 was a crime of violence as defined by U.S.S.G. § 4B1.2(a).
On July 10, 2008, Defendant filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.*fn1 The petition alleges that (1) Defendant's trial counsel was ineffective for failure to file a motion to compel the production of official documents supporting Defendant's conviction for recklessly endangering another person; (2) Defendant's trial and appellate counsel were ineffective for failing to adequately develop the argument that the charge of recklessly endangering another person was not a crime of violence; and (3) trial counsel was ineffective for failure to object to the Government's argument at sentencing that Defendant was appropriately classified as a career offender. The motion has been briefed and is ripe for resolution.
In Strickland v. Washington, 486 U.S. 668 (1984), the Supreme Court established a two prong test to determine when a defense counsel's representation was so inadequate as to warrant reversal of a conviction. A defendant first must establish his counsel's representation was constitutionally deficient. Id. at 687. This standard is met if counsel's performance "fell below an objective standard of reasonableness." Id. at 668. A court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
The second Strickland prong is reached only when the first exists. If so, a defendant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A defendant must show more than "that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. The error must be "sufficient to undermine confidence in the outcome." Id. at 694. With this standard in mind, Defendant's allegations will be addressed.
A. Failure to Produce Court Records of Conviction for Charge of Recklessly Endangering Another Person
The Third Circuit Court of Appeals has held that when considering whether a conviction is a crime of violence under the career offender guidelines, a court "should begin with the language of the statute and if it is clear, it should not look beyond the statute's text to the actual conduct." United States v. Siegel, 477 F.3d 87, 90 (2007).
In the instant case on appeal (United States v. Manigault, 228 Fed. Appx. 183 (3d Cir. 2007), the court reviewed the underlying crime in a categorical fashion and was done without consideration of the underlying facts. The court held "we look only to the elements of the charges and not the underlying fact in determining whether a particular conviction qualifies as a crime of violence." Id. at 186. Defendant suffered no prejudice as a result of counsel's failure to file a motion to compel the production of the charging documents as the records would not have altered the categorical determination that the conviction qualified him as a career offender. This is the law of the case.
B. Failure of Trial and Appellate Counsel to Analogize the Career Offender Definition of "Crime of Violence" to Immigration Violations under Title 18 U.S.C. §16(a)
There is a distinction Between 18 U.S.C. § 16 and U.S.S.G. § 4B1.2. Defendant argues that sentencing counsel's failure to adequately develop the argument that reckless endangerment is not a crime of violence was ...