The opinion of the court was delivered by: Judge Munley
Before the court for disposition is Defendant Sherman Bobb's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. The matter has been fully briefed and is ripe for disposition.
A federal grand jury in Scranton, Pennsylvania returned a three-count "Third Superseding Indictment" against Defendant Bobb and seven others on September 23, 2004. (Doc. 184). The indictment charged as follows: Count 1- conspiracy to distribute and possess with intent to distribute five (5) kilograms or more of cocaine, one and a half (1.5) kilograms or more of cocaine base (crack), heroin, and methylenedioxymethamphetamine (ecstasy) in violation of 21 U.S.C. § 846; Count 2- possession of firearms, including but not limited to a short-barreled shotgun during, in relation to, or in furtherance of a drug trafficking felony in violation of 18 U.S.C. § 924; Count 3- possession with intent to distribute in excess of five (5) grams of cocaine base (crack) on December 22, 2003, in violation of 21 U.S.C. § 841(a)(1). (Id.) Count one was directed at all the defendants. Count two was directed at Defendant Bobb and Defendant Danielle Lee, and the third count was directed at Defendant Bobb alone.
After a seven-day trial held in January 2005, a jury convicted Defendant Bobb on all three counts. (Doc. 302). The jury specifically found, with regard to Count 1, that defendant conspired to distribute at least one and a half (1.5) kilograms of cocaine base (crack) and at least five (5) kilograms of cocaine. (Doc. 302, Jury Verdict). With regard to Count 2, the jury found that defendant possessed a short-barrel shotgun. (Id.). Finally, with regard to Count 3, the jury found that defendant possessed with intent to distribute at least five (5) grams but less than twenty (20) grams of cocaine base (crack). Id.
The court sentenced defendant on November 18, 2005 to total of 360 months in prison.*fn1 (Doc. 401, Judgment). Defendant appealed to the Third Circuit Court of Appeals, which affirmed this court's judgment and commitment on December 28, 2006. (Doc. 430). Defendant then filed the instant motion on February 4, 2008. The defendant's motion raises six issues, which we will address in turn.
I. Ineffectiveness of Counsel - Duplicity, Multiplicity and Bill of Particulars
The first ground that defendant raises in his motion is that counsel was ineffective for failing to object to "Duplicity and Multiplicity" in Counts 1, 2 and 3 and for failing to move for a bill of particulars. We will discuss these issues separately after discussing the general law with respect to effectiveness of counsel.
The United States Supreme Court has found that "'the right to counsel is the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)). Counsel is ineffective when "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. In order to prove that his counsel was deficient at trial or sentencing, a defendant must convince a court of two factors: "[f]irst, the defendant must show that counsel's performance was deficient[,] . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Substandard lawyering is not enough to obtain relief, however: "[s]econd, the defendant must show that the deficient performance prejudiced the defense" by demonstrating that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Relief is only available to defendants who make "both showings." Id. In sentencing, "prejudice exists where the deficient performance affected a defendant's sentence." United States v. Hankerson, 496 F.3d 303, 310 (3d Cir. 2007).
Duplicity is the improper joinder in a single count of two or more distinct and separate offenses. United States v. Haddy, 134 F.3d 542, 547 (3d Cir. 1998). In the instant case, the defendant argues that the third superceding indictment improperly joins multiple distinct and separate offenses in one count. A review of the indictment, however, reveals that defendant's position is without merit. As set forth above, each count charges a separate crime. The crime charged in Count I of the indictment conspiracy to distribute and possession with intent to distribute cocaine base (crack); heroin and methylenedioxymethamphetamine (ecstasy). (Doc. 184, 1-2). Count II deals with the crime of possessing firearms in relation to a drug trafficking felony. (Id. at 3). Count III charges possession with intent to distribute in excess of five grams of cocaine base (crack). (Id. at 4).
Evidently, the defendant argues that Count I of the complaint is duplicitous because it charges him with a conspiracy to distribute not one controlled substance, but several. The Third Circuit Court of Appeals, however, has explained that a count charging a conspiracy to distribute several drugs does not suffer from improper duplicity. United States v. Gomberg, 715 F.2d 843, 845-46 (3d Cir. 1983), (overruled on other grounds, Garrett v. United States, 471 U.S. 773 (1985)). The crime in such an instance is conspiracy, and an agreement to commit several crimes is only one conspiracy.*fn2 Id. at 846.
Thus, none of the counts join two or more distinct and separate offenses, and defendant's counsel was not ineffective for failing to raise this issue. The ...