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United States v. Gordon

June 11, 2009

UNITED STATES OF AMERICA
v.
RODNEY GORDON, DEFENDANT



The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)

MEMORANDUM

Before the court for disposition is Defendant Rodney Gordon's 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.

Background

On May 28, 2003, a jury in the United States District Court for the Middle District of Pennsylvania convicted defendant of possession with the intent to distribute and manufacture a controlled substance (cocaine) in violation of 21 U.S.C. § 841(a)(1). (Doc. 1, Section 2255 Motion at ¶ ¶ 1-4). The court sentenced Gordon to 210 months imprisonment. (Doc. 78, Judgment). Defendant appealed his conviction to the Third Circuit Court of Appeals. (Doc. 79, Notice of Appeal). The Third Circuit affirmed his conviction. (Doc. 85, Mandate of the Third Circuit). Defendant then filed the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 ("section 2255") and a brief in support thereof. In the motion, defendant asserts that his conviction was obtained in violation of his constitutional right to effective assistance of counsel. (Doc. 1, Section 2255 Motion ¶ 12 A). The motion has been fully briefed and is ripe for disposition.

Discussion

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.

Defendant asserts that his conviction was obtained in violation of his constitutional right to effective counsel. The United States Supreme Court has found that Sixth Amendment "'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.

Defendant argues that his court-appointed counsel was ineffective in the following ways: 1) failure to interview and/or investigate a witness pertinent to the defense theory of the case, that is, his parole officer on another case who evidently had knowledge of drug test results that demonstrated that defendant used cocaine; 2) failure to introduce into evidence urinalysis reports relevant to the defense; and 3) failure to introduce evidence of defendant's drug usage after suggesting to the jury in the opening statement that such evidence would be provided.

The defendant's arguments all center on whether the jury could conclude that he possessed the cocaine for personal use as opposed to intending to distribute it. According to the defendant, if this defense had been presented properly, the jury could have found him guilty of the lesser offense of Simple Possession of Cocaine, 21 U.S.C. § 844(a), as opposed to the more severe offense of Possession With Intent To Distribute Cocaine, 21 U.S.C. § 841(a)(1). His counsel, however, did not investigate and/or present this evidence, although he did indicate in his opening statement that such evidence would be presented.

More particularly stated, the facts regarding defendant's motion are as follows: Prior to the instant criminal case, defendant had been convicted of other crimes, more particularly four convictions for distribution and/or possession with intent to distribute crack cocaine and cocaine. He was on parole after serving a period of imprisonment for these several of these convictions when he tested positive for cocaine on several occasions, 2/21/2002, 2/25/2002, 3/11/2002, 3/12/2002, 3/13/2002, 3/14/2002, 4/15/2002, 4/22/2002, 4/26/2002. (Doc. 87, Defendant's Brief/Exhibits, page 30-38). Defendant argues that his counsel was ineffective for not investigating into Parole Officer Robert Gamble's knowledge of his cocaine use and for failing to admit into evidence the urinalysis results that ...


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