The opinion of the court was delivered by: Judge Munley
Before the court for disposition is the motion to vacate, set aside or correct sentence filed pursuant to 28 U.S.C. § 2255. The matter has been fully briefed and is ripe for disposition.
A federal grand jury sitting within the Middle District of Pennsylvania returned a one count indictment against Defendant Jesse Boyd on August 26, 2003. The indictment charged him as follows: On or about June 19, 2003, in the Middle District of Pennsylvania and elsewhere, the defendant, also known as "Jet," knowingly and intentionally distributed and possessed with intent to distribute eighteen (18) grams or more of a mixture and substance containing a detectable amount of cocaine in violation of 21 U.S.C. § 841(a)(1). (See Doc. 1, Indictment).
On January 28, 2004, the government filed a plea agreement entered into by the United States and the defendant. (Doc. 23). On February 5, 2004, the defendant pled guilty to the indictment pursuant to the terms of the written plea agreement. (Doc. 27). Defendant appeared in court for sentencing on September 28, 2004, but he was not sentenced on that day. (Doc. 72). Instead, the court rejected the guilty plea. (Id.).
Defendant entered an unconditional guilty plea to the indictment on February 1, 2005. (Doc. 96). The court sentenced defendant on March 22, 2005 to a term 188 month-term of imprisonment, a three-year term of supervised release and a $100.00 special assessment. (Doc. 106). Defendant filed a direct appeal to the Third Circuit Court of Appeals. (Doc. 108). The Third Circuit affirmed the judgment of conviction and sentence on March 22, 2006. (Doc. 116). Defendant filed a petition for a writ of certiorari with the United States Supreme Court, which was denied on October 2, 2006. Boyd v. U.S., 549 U.S. 922 (2006). Defendant then filed the instant motion.*fn1
Generally, the basis of defendant's complaint is that the indictment he pled guilty to indicated that the quantity of cocaine involved was 18 grams or more. The government provided evidence, however, that actually 11,700 grams of powder cocaine and 300 grams of crack cocaine were involved in the defendant's criminal enterprise. This greater quantity of drugs affected the defendant's sentence. Therefore, defendant attacks the basis for the government's calculation of the amount of drugs involved.
Defendant moves for relief under 28 U.S.C. § 2255, which reads in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. 28 U.S.C. § 2255.
The motion raises eight issues. We will address each in turn.
1. Ineffectiveness of Counsel with Regard to Challenging the Validity of Defendant's February 5, 2004 Guilty Plea
Defendant first argues that his third appointed counsel was ineffective in failing to challenge the validity of his February 5, 2004 guilty plea based upon the ineffectiveness of his second appointed 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).
Specifically in the guilty plea setting, a defendant must establish"that (i) his or her counsel's representation fell below an objective standard of reasonableness demanded of attorneys in criminal cases; and (ii) there is a reasonable probability that, but for counsel's errors, he or she would have proceeded to trial instead of pleading guilty." United States v. Nahodil, 36 F.3d 323, 326 (3d Cir.1994).
An examination of the factual background of this issue is important.
On January 28, 2004, plaintiff entered into a written plea agreement. At the time that he entered into his first guilty plea, defendant was represented by Attorney Deborah Albert-Heise. Defendant agreed to plead guilty to the one-count indictment that charged him with a violation of 21 U.S.C. § 841(a)(1), distribution of cocaine, a schedule II controlled substance. (Doc. 23). The plea agreement did not specify the amount of drugs involved, but the indictment indicated that the amount of controlled substance involved is "18 grams or more." (Doc. 1, Indictment).
At the initial guilty plea, the United States indicated that the defendant traveled weekly from Buffalo, New York to the Stroudsburg, Pennsylvania area to sell cocaine. (Doc. 56, Notes of Testimony (hereinafter "N.T.") Change of Plea February 5, 2004 at 14). He would not bring the drugs with him from Buffalo, but would rather obtain fifty (50) to one hundred (100) grams of cocaine from a source in Pennsylvania each week. (Id.). Defendant engaged in these trips from Buffalo for the purpose of selling cocaine from at least 1999 until the date of his arrest in 2003. (Id.). At the February 5, 2004 plea, the defendant ...