The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is a motion filed by Defendant Michael Redd pursuant to 28 U.S.C. § 2255. Redd alleges that his trial counsel was incompetent, alleging that (1) counsel did not make a good faith effort to discover the facts relevant to his sentencing; (2) counsel should not have caused Defendant to plead guilty to a conspiracy; and (3) the court, at sentencing, relied upon facts not proved at trial or admitted by Defendant. The issues have been briefed and are ripe for disposition.
To prevail on a claim of ineffective assistance of counsel, a petitioner must establish that (1) the performance of trial counsel fell below an objective standard of reasonableness, and (2) the performance of counsel unfairly prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 691 (1984). "Both Strickland prongs must be satisfied." George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001) (citing United States v. Nino, 878 F.2d 101, 104 (3d Cir. 1989).
The first Strickland prong requires a defendant to"establish... that counsel's performance was deficient." Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001.) Proving a deficiency in conduct "requires showing that counsel was not functioning as 'counsel' guaranteed by the Sixth Amendment." Id. (quoting Strickland, 466 U.S. at 687) (internal quotations omitted). "In assessing counsel's performance, 'every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.' " Id. "That is to say, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (quoting Strickland, 466 U.S. at 689)). It is well settled that the benchmark for judging any claim of ineffectiveness of counsel is "whether 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." Strickland, 466 U.S. at 686.
The second prong of Strickland requires a defendant to show that counsel's performance unfairly prejudiced the defendant, meaning that counsel's errors were so serious as to deprive the defendant of a trial whose result is reliable. Id. It is not enough to show that the error had some conceivable effect on the outcome of the proceeding, for virtually every act or omission would meet such a test. Id. Rather, the defendant must show there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Id. at 694. A reasonable probability is sufficient to undermine confidence in the outcome of the trial. Id. Effectiveness of counsel applies to advice given by counsel during guilty plea discussions. Hill v. Lockhart, 474 U.S. 52, 58 (1985); United States v. Booth, 432 F.3d 542, 547 (ed cir. 2005). With the above precepts in mind, the claims of Defendant will be addressed.
A. Failure to Properly Investigate
Redd claims that if counsel had properly investigated, he would have argued that Redd had a minor role in the offense.
On May 9, 2007, a two-count Indictment was filed charging Defendant Redd and coconspirators, Malverse D. Giles and Norman Lee Thomas, with distribution and possession with intent to distribute cocaine hydrochloride and fifty grams and more of cocaine base (Count I) on or about May 2, 2007, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to distribute and possess with intent to distribute cocaine hydrochloride and fifty grams and more of cocaine base (Count II) on or about May 2, 2007, in violation of 21 U.S.C. § 846. On November 16, 2007, a one-count Superseding Information was filed charging Redd with conspiracy to distribute and possess with intent to distribute cocaine hydrochloride and cocaine base, on or about May 2, 2007, in violation of 21 U.S.C. § 846.
On December 6, 2007, Defendant pled guilty to conspiracy to distribute and possess with intent to distribute cocaine hydrochloride and cocaine base, and actual distribution, pursuant to a written plea agreement whereby the Government would recommend a three-level reduction for acceptance of responsibility, if warranted, and dismiss any remaining counts following sentencing. This plea bargain enabled Redd to avoid a mandatory minimum sentence of incarceration of ten (10) years, had he been found guilty of the charges in the Indictment.
The investigation leading to the charges identified two apartments in a high rise apartment complex (Executive House in Harrisburg, Pennsylvania), as the location Norman Thomas was utilizing to store, manufacture and package crack cocaine for distribution. The location was described as two apartments joined by an interior common door.
In April 2007, investigators began surveillance operations at Executive House in an effort to document Thomas' activity. On May 2, 2007, investigators observed Thomas and an unidentified black male (later identified by Thomas as Michael Redd) exit the apartment building. Thomas and Redd were followed to the CVS on Market Street where Thomas was observed purchasing baking soda, which is commonly used to change powder cocaine into crack cocaine. Thomas and Redd returned to the apartment building and entered apartment number 915. An hour later, Thomas ...