The opinion of the court was delivered by: Jan E. Dubois, J.
AND NOW, this 11th day of March, 2009, upon consideration of defendant's pro se Motion to Have Sentence Vacated, Set Aside, and/or Corrected Pursuant to 28 U.S.C. § 2255 (Document No. 110, filed December 8, 2008); the United States of America's Response in Opposition to Defendant's Section 2255 Motion (Document No. 115, filed January 26, 2009); and Pro Se Defendant['s] Response to United States Opposition of 2255 Motion (Document No. 116, filed February 9, 2009), for the reasons set forth in the attached Memorandum, IT IS ORDERED that defendant's pro se Motion to Have Sentence Vacated, Set Aside, and/or Corrected Pursuant to 28 U.S.C. § 2255 is DENIED.
IT IS FURTHERED ORDERED that a certificate of appealability will not issue on the ground that defendant has not made a substantial showing of a denial of a constitutional right as required under 28 U.S.C. § 2253(c)(2).
Defendant Richard Ballard, who is currently incarcerated at the Low Security Correctional Institution in Allenwood, Pennsylvania, pled guilty to possession with intent to distribute cocaine and possession of a firearm and ammunition by a convicted felon. On December 8, 2008, defendant filed the pending pro se Motion to Have Sentence Vacated, Set Aside, and/or Corrected Pursuant to 28 U.S.C. § 2255. In the motion, defendant challenges his sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e), which provides for a fifteen-year mandatory minimum sentence for a defendant convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g), if the defendant has three prior convictions "for a violent felony or a serious drug offense." Defendant argues in his motion that there was no factual basis for the three prior convictions to which he stipulated in the plea agreement and that both his guilty plea and his sentencing counsel were ineffective. For the reasons set forth below, the Court concludes that defendant's arguments lack merit and denies defendant's pro se Motion to Have Sentence Vacated, Set Aside, and/or Corrected Pursuant to 28 U.S.C. § 2255.
II. FACTS AND PROCEDURAL HISTORY
A detailed factual and procedural history is included in the Court's Memorandum and Order of July 18, 2005. See Mem. & Order of July 18, 2005, at 1--5 (Doc. No. 60); United States v. Ballard, No. 03-CR-810, 2005 WL 1690826, at *1--3 (E.D. Pa. July 18, 2005). Accordingly, the Court sets forth in this Memorandum only the background necessary to resolve the motion presently before the Court.
A six-count Indictment filed on December 9, 2003 charged defendant Richard Ballard as follows: (1) possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count I); (2) possession of cocaine base ("crack") in violation of 21 U.S.C. § 844(a)(1) (Count II); (3) possession of heroin, in violation of 21 U.S.C. § 844(a) (Count III); (4) possession of a firearm and ammunition after having been convicted in state court of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count IV); (5) possession of body armor after having been convicted of a crime of violence, in violation of 18 U.S.C. § 931 (Count V); and (6) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count VI).
On August 5, 2004, defendant entered into a guilty plea agreement with the government in which he agreed to plead guilty to Counts I, IV, and VI of the Indictment. (Doc. No. 37, filed Aug. 24, 2004.) Defendant was represented by Gregory J. Pagano, Esquire. In the plea agreement, the parties stipulated that defendant had two prior state court convictions for felony robbery in the first degree and one prior state court conviction for possession with intent to distribute a controlled substance. (Plea Agr. ¶ 8.) The parties further stipulated that pursuant to United States Sentencing Guidelines ("U.S.S.G" or "Guidelines") § 4B1.4(c)-the armed career criminal guideline-defendant's criminal history category was VI, and that, under U.S.S.G. §§ 3E1.1(a) and (b), defendant was entitled to a three-level reduction for acceptance of responsibility. (Id.) In the agreement, defendant also expressly waived his rights to appeal or collaterally attack his conviction or sentence with three exceptions: (1) if the government appealed from defendant's sentence; (2) if defendant's sentence exceeded the statutory maximum; or (3) if the sentencing judge erroneously departed upward from the otherwise applicable guideline range. (Id. ¶ 9.)
On August 30, 2004, the Court held a change of plea hearing and accepted defendant's guilty plea as to Counts I, IV, and VI. The Court reviewed the Indictment with defendant, who confirmed that he understood each count. (Change of Plea ("COP") Hr'g Tr. 12--15, Aug. 30, 2004.) At that hearing, defendant challenged the notice of prior convictions appended to the Indictment by arguing that his two convictions for robbery were consolidated and should only count as a single conviction for purposes of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). (Id. at 47--51.) The Court noted defendant's objection and stated that it was "a subject on which we need more information and we'll have it." (Id. at 49--50.)
In response to the Court's questioning, defendant confirmed that he had decided to plead guilty and sign the plea agreement, including the stipulation to three prior state convictions, of his own free will. (Id. at 55.) After inquiring of defense counsel and government counsel whether it was established to their satisfaction that defendant was entering the plea knowingly, voluntarily, and intelligently, the Court accepted defendant's plea of guilty as to Counts I, IV, and VI. (Id. at 72--74.)
On September 16, 2004, defendant filed a pro se Motion to Withdraw Guilty Plea. (Doc. No. 41, filed Sept. 16, 2004.) Defendant's counsel also filed a supplemental memorandum of law in support of defendant's motion. (Doc. No. 50, filed Nov. 17, 2004.) The Court held a hearing on that motion on February 17, 2005. By Memorandum and Order dated July 18, 2005, the Court granted defendant's motion as to Count VI (possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)) and denied defendant's motion in all other respects. Mem. & Order of July 18, 2005 (Doc. No. 60). The Court concluded that defendant's plea was not knowing and voluntary with respect to Count VI as he did not understand the nature of the charge. Id. at 10--11. With respect to defendant's argument that his plea was invalid due to ineffective assistance of counsel, the Court disagreed and held that counsel was effective regarding defendant's guilty plea. Id. at 11--12. Following the Court's ruling, defendant filed a pro se motion to dismiss Count VI of the Indictment. (Doc. No. 63, filed Aug. 9, 2005.) By Order dated September 16, 2005, the Court granted defendant's motion and dismissed Count VI. Order of Sept. 16, 2005 (Doc. No. 72).
The Court held a sentencing hearing on March 22, 2006, at which defendant was represented by Cheryl J. Sturm, Esquire. Defendant argued that the state court convictions to which he had stipulated did not categorically satisfy the definition of a violent felony or a serious drug offense under the ACCA, 18 U.S.C. § 924(e).*fn1 (Sentencing Hr'g Tr. 5--10, 34--47, Mar. 22, 2006.) Defendant further argued that the documents proffered by the government in proof of his state court convictions were not sufficient to establish that defendant had pled guilty to three felonies satisfying § 924(e). (Id. at 11--24, 31, 34--47.) While observing that defense counsel had argued superbly, the Court, in light of Third Circuit precedent, rejected both of defendant's arguments. (Id. at 25, 29, 48, 91.) Reviewing the records presented by the government, the Court ruled that they established that defendant had been convicted of three felonies encompassed by § 924(e)-two robberies and a serious drug offense. (Id. at 25, 48.)
Turning to the Guidelines, the Court determined that the total offense level was 31 and that defendant had a criminal history category of VI. (Id. at 71.) This resulted in a Guidelines sentencing range of 188 to 235 months. (Id.) Considering all of the circumstances, the Court determined that a sentence outside of the advisory Guidelines range was appropriate and sentenced defendant to 180 months, the ACCA's 15-year mandatory minimum sentence. (Id. at 85--86.)
Defendant, represented by Ms. Sturm, appealed his sentence to the Third Circuit on March 23, 2006. Defendant argued that his appeal fell within the exceptions to the appellate waiver as the 180-month sentence was above the statutory maximum for a violation of 18 U.S.C. § 922(g) and was also an upward departure without notice. (Appellant's Br. 30.) Defendant further argued that the waiver should not be enforced because counsel who represented him with respect to the plea agreement and the waiver contained therein was ineffective. (Id. at 30--32.) Substantively, defendant reiterated the arguments that he made at sentencing-(1) the convictions to which he stipulated in the plea agreement did not categorically satisfy the definitions of violent felony and serious drug offense under the ACCA, and (2) the documents provided by the government were not sufficient proof that he was convicted of such crimes. (Id. at 23--28, 35--41.)
On August 27, 2007, in a non-precedential opinion, the Third Circuit affirmed defendant's conviction and sentence. United States v. Ballard, 245 F. App'x 137, 140 (3d Cir. Aug. 29, 2007). The court held that neither of the exceptions to the waiver applied to defendant's appeal. Id. at 139--40. With respect to defendant's ineffective assistance of counsel argument, the Court concluded that he "failed to prove that he did not knowingly and voluntarily enter into the plea agreement." Id. at 139. Citing to a holding by this Court in its Memorandum and Order of July 18, 2005 that there was no ineffective assistance of counsel, the Third Circuit rejected defendant's argument. Id. The court noted, however, that it was only considering the claim of ineffective assistance of counsel in relation to defendant's direct appeal and left open the possibility to revisit the same argument on collateral review. Id. "Generally, we only consider ineffective assistance of counsel claims on collateral review. We see no reason to deviate from our general practice here. Accordingly, Ballard may raise an ineffective assistance of counsel claim on collateral review." Id. The Third Circuit's mandate issued on March 26, 2007.
On December 8, 2008, defendant filed the pending pro se Motion to Have Sentence Vacated, Set Aside, and/or Corrected Pursuant to 28 U.S.C. § 2255 ("2255 Motion"). (Doc. No. 110, filed Dec. 8, 2008.) In the motion, defendant does not challenge his guilty plea to Counts I and IV of the Indictment but only the application of § 924(e) at sentencing. (2255 Mot. 2.)
Defendant collaterally attacks his sentence on a number of grounds, including, inter alia, that there was no factual basis for the convictions to which he stipulated in the plea agreement and that both his plea and his sentencing counsel were ineffective. Defendant further ...