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United States v. El Amin

September 17, 2008

UNITED STATES OF AMERICA
v.
MOHAMMED EL AMIN, PETITIONER



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Before the Court is Petitioner Mohammed El Amin's pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. No. 69.) The Government has filed a brief in opposition to the motion (Doc. No. 74), to which El Amin has not responded within the briefing period. As such, the motion is ready for disposition. For the reasons discussed below, the motion will be denied.

I. BACKGROUND

On February 9, 2005, a federal grand jury issued an indictment charging El Amin with five drug and gun related counts: possession of a firearm in furtherance of drug trafficking (18 U.S.C. § 924(c)); possession with intent to distribute five grams or more of cocaine base (18 U.S.C. § 841(a)(1)); possession with intent to distribute heroin (18 U.S.C. § 841(a)(1)); possession with intent to distribute marijuana (18 U.S.C. § 841(a)(1)); and possession of a firearm by a felon (18 U.S.C. § 922(g)). (Doc. No. 1.) On February 22, 2005, El Amin made his initial appearance before Magistrate Judge J. Andrew Smyser, during which hearing Attorney Rex Bickley was appointed as counsel. (Doc. No. 8.) Also on this date, El Amin entered a plea of not guilty. (Doc. No. 11.)

Subsequently, on May 25, 2005, the Government filed an "Information Charging Prior Felony Conviction" that listed six prior felony convictions for El Amin (Doc. No. 30) and a signed plea agreement (Doc. No. 31). On June 1, 2005, El Amin pleaded guilty to Count 5 of the indictment which charged him with possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). (Doc. Nos. 31, 48.) The written plea agreement stated that the maximum period of imprisonment for this offense was life, and that a fifteen-year mandatory minimum applied. (Doc. No. 31, at 2, 3.) During the guilty plea colloquy, the Court informed El Amin: "There's a huge penalty that goes with this, this offense to which you're going to plead guilty. We're talking a minimum of 15 years, so it's a pretty important decision for you." (Doc. No. 48, at 13-14.) The Government then reiterated the mandatory minimum stating: "[W]hen you plead guilty to Count 5, you're also going to be admitting that at the time that you possessed this firearm, that you had three predicate offenses that we'll go through . . . which is a 15-year mandatory sentence." (Id. at 17.) El Amin than stated that he was aware that the sentence in this case would probably be between fifteen to twenty years. (Id. at 25.)

El Amin appeared before the Court again on September 23, 2005, and claimed he did not trust his attorney and would possibly like to discuss withdrawing his guilty plea. (Doc. No. 65, at 2.) The Court permitted Attorney Bickley to withdraw as counsel and appointed Federal Public Defender Thomas Thorton to represent El Amin. (Doc. Nos. 49, 50.) At this time, El Amin was allowed an opportunity to withdraw his guilty plea, but he did not wish to do so. (Doc. No. 65, at 4.) Finally, at sentencing on October 31, 2005, El Amin, with counsel present, again chose to stand by his guilty plea and signed plea agreement. (Doc. No. 64, at 10-11.)

II. STANDARD OF REVIEW

Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence on the grounds that:

the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .

28 U.S.C. § 2255. However, § 2255 does not afford a remedy for all errors that may have been made at trial or sentencing. United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993). "The alleged error must raise 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. (quoting United States v. Addonizio, 422 U.S. 178, 185 (1979)). Furthermore, § 2255 generally limits a federal prisoner's ability to attack the validity of his sentences to cure jurisdictional errors and errors which rose to the level of a constitutional violation. United States v. Timmreck, 441 U.S. 780, 783-84 (1979).

The decision whether to hold a hearing when a prisoner moves to vacate a judgment under § 2255 is left to the sound discretion of the district court. Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In general, if a petitioner raises an issue of material fact, a district court must afford a hearing in order to determine the truth of the prisoner's allegations. Essig, 10 F.3d at 976. However, a petitioner is not entitled to a hearing if the allegations set forth are contradicted conclusively by the record or if the allegations are patently frivolous. Solis v. United States, 252 F.3d 289, 295 (3d Cir. 2001).

III. DISCUSSION

A. El Amin's Claim that Plea Counsel was Ineffective

El Amin contends that the quality of representation provided by Attorney Bickley (hereinafter "plea counsel") fell below that which the Constitution requires; specifically, El Amin asserts that plea counsel had a conflict of interest and was, therefore, biased. (Doc. No. 69, at 5.) The Sixth Amendment to the United States Constitution guarantees that an individual accused of a criminal act will be afforded effective assistance of counsel, and that assistance must be conflict-free. United States v. Gambino, 864 F.2d 1064, 1069 (3d Cir. 1988). Ineffective assistance of counsel can be "presumed when counsel is burdened by an actual conflict of interest." Government of Virgin Islands v. Zepp, 748 F.2d 125, 132 (3d Cir. 1984) (quoting Strickland v. Washington, 466 U.S. 668 (1984)). An actual conflict of interest arises when the interests of the accused diverge from the interests of the attorney. Gambino, 864 F. 2d at 1070. Cases where an actual conflict is present most ...


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