The opinion of the court was delivered by: DuBOIS, J.
Petitioner John Nigro was convicted following a jury trial of one count of knowing possession of a firearm or ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). On April 28, 2008, petitioner filed the pending pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. In the motion, petitioner argues that his attorney provided ineffective assistance of counsel at various stages of the representation-before trial, during trial, and on appeal. The Court concluded that one of petitioner's claims-Claim M-warranted an evidentiary hearing, which was held on June 18, 2009.
In Claim M, petitioner argues that his counsel was ineffective in failing to advise him regarding the then-recently decided Supreme Court case Shepard v. United States, 544 U.S. 13 (2005), and its possible implications on his sentencing exposure. In particular, petitioner contends that defense counsel erroneously stated that petitioner faced a fifteen-year mandatory minimum sentence pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e), even if he entered a guilty plea. Based on this advice, petitioner opted to go to trial, concluding that he had nothing to lose by doing so. Following his conviction, however, petitioner was not sentenced as an armed career criminal because of the unavailability of the documents required to establish three predicate violent felony convictions under Shepard. Instead, petitioner was sentenced under the United States Sentencing Guidelines to 96 months incarceration. Petitioner now argues that had he been properly informed regarding Shepard, he would have chosen to plead guilty and would have received a three-point reduction for acceptance of responsibility and a lower sentence.
For the reasons set forth below, the Court concludes that Claim M and petitioner's remaining claims lack merit and denies petitioner's pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 1, 2004, a warrant was issued for petitioner's arrest for the burglary of a residence at 1328 Geary Street in Philadelphia, Pennsylvania on October 12, 2004. United States v. Nigro, No. 05-CR-62, 2005 WL 2452147, at *1 (E.D. Pa. Oct. 4, 2005). During the burglary, a safe, jewelry, and other items were taken from the residence. Id. The warrant was founded on an Affidavit of Probable Cause by Detective Stephen Caputo. Id.
Petitioner fled from three encounters with police prior to his arrest on December 10, 2004. Id. On October 28, 2004, petitioner fled from the police on foot. Id. On November 30, 2004 and December 6, 2004, petitioner eluded capture by the police in an automobile, causing, on the latter day, a multi-vehicle crash. Id. During this time period, Detective Caputo notified the Philadelphia Police Department that petitioner was armed and had fled from the police in the past. Id. at *2. Detective Caputo also made a wanted poster relating to petitioner that described him as possibly armed with a firearm and that warned others to use caution when attempting an arrest. Id.
On December 10, 2004, a confidential informant told the police that petitioner was at 141 Gladstone Street in Philadelphia and that he was armed with a gun. Id. Following a search of the named property, Detective Robert Conn located petitioner in the backyard of 137 Gladstone Street. Id. As Detective Conn lifted petitioner from the ground and cuffed his hands behind his back, Detective Raymond Evers picked up a green bag located on the ground next to petitioner. Id. Based on the weight and feel of the bag, Detective Evers concluded that the bag contained a firearm. Id. Assisted by Detective Caputo, he opened the bag and retrieved a revolver. At the time that the bag was opened, petitioner was fully handcuffed. Id.
On February 8, 2005, petitioner was charged in a one-count Indictment with knowingly possessing a firearm after having been convicted in a court of the Commonwealth of Pennsylvania 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).
Petitioner's first counsel was Federal Defender Kai N. Scott, Esquire. On March 2, 2005, Scott filed a Motion to Suppress Physical Evidence, in particular the gun and the other items seized during petitioner's arrest. Scott filed a Supplemental Motion to Suppress Physical Evidence on April 29, 2005. On May 26, 2005, petitioner filed a pro se motion to withdraw both suppression motions, which was granted on June 22, 2005. Also on June 22, 2005, the Court granted petitioner's pro se Motion to Dismiss Counsel and Re-Appoint [sic] Counsel Pursuant to Title 18 U.S.C. § 3006A, dismissed Scott, and appointed Mark S. Greenberg, Esquire, to represent petitioner. On July 28, 2005, the Court granted Greenberg's motion to reinstate the previously filed suppression motions.
On August 12, 2005, Greenberg moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to determine whether the affidavit accompanying the arrest warrant contained deliberately reckless or false information. On August 25, 2005, the Court denied petitioner's motion on the ground that "the slight difference between the Affidavit and Investigation Interview Record [wa]s insufficient to make 'a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.'" Order of Aug. 25, 2005, at 4 (quoting Franks, 438 U.S. at 155--56). On September 9, 2005, despite the Court's ruling, petitioner filed a Pro Se Motion for Hearing Pursuant to Franks v. Delaware, 438 U.S. 154 (1978). By Order dated September 13, 2005, the Court ruled that the government should be prepared to address the issues raised by petitioner's pro se motion for a Franks hearing at the hearing on the suppression motions scheduled for September 16, 2005.
On September 16, 2005, the Court held a hearing on all of the pending motions. With respect to the Motions to Suppress, the government presented four witnesses: Sergeant Raymond Evers, Detective Robert Conn, Detective Stephen Caputo, and Officer Gary Harkins. Following the hearing, by Order dated September 16, 2005, the Court granted petitioner's Pro Se Motion for Hearing Pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The Court ruled, however, that considering the Affidavit of Probable Cause with all of the evidence that petitioner stated was omitted, the inclusion of the omitted evidence was not material or necessary to the probable cause finding. On October 3, 2005, the Court denied petitioner's Motions to Suppress. The Court concluded that even though the bag was picked up while petitioner was being handcuffed and was searched when petitioner was fully handcuffed, the search was incident to his arrest.
United States v. Nigro, 2005 WL 2452147, at *5.
Petitioner's jury trial began on October 5, 2005. Petitioner was represented at trial by Greenberg. At trial, the government called Police Officer John Cannon as an expert witness in firearms identification. Cannon testified that the gun seized from petitioner was manufactured by the Taurus Manufacturing Company, which is located in Brazil. (Trial Tr. 51, 55, Oct. 6, 2005.) He also stated that, in his expert opinion, the gun was not a counterfeit. (Id. at 56--59.) On October 6, 2005, the jury found petitioner guilty of the sole count of the Indictment, knowing possession of a firearm or ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1).
In his Sentencing Memorandum, petitioner relied on Shepard v. United States, 544 U.S. 13 (2005), to argue that his base offense level should be 20 rather than 24, as calculated in the Presentence Report. (Def. Sentencing Mem. 1--3, Mar. 30, 2006.) In Shepard, the Supreme Court held that the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), "makes burglary a violent felony only if committed in a building or enclosed space ('generic burglary'), not in a boat or motor vehicle." 544 U.S. at 15--16. The Shepard Court also held that proof at sentencing of whether a burglary conviction involved a generic burglary is limited to "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Id. at 16, 26. Petitioner argued that "the proof limitations imposed by Shepard apply equally in connection with a base offense level calculation under USSG §§ 2K2.1(a) and 4B1.2(a)(2)." (Def. Sentencing Mem. 2.) The government conceded in its Sentencing Memorandum that "[g]iven the state of the Philadelphia Court of Common Pleas records of the defendant's numerous burglary convictions, the government acknowledges that [it] is unable to establish that the defendant qualifies as an armed career criminal, which would have subjected him to a 15 year statutory mandatory minimum." (Gov't Sentencing Mem. 2 n.2, Mar. 31, 2006.)
At sentencing, as the government could not prove petitioner's ACCA predicate offenses with any of the documents allowable under Shepard, the Court calculated defendant's Guidelines sentence and did not apply the fifteen-year ACCA mandatory minimum. Agreeing with petitioner's Shepard argument, the Court calculated a total offense level of 20. (Sentencing Hr'g Tr. 15--16, Apr. 7, 2006.) With a criminal history category of VI, the Guidelines range was 70 to 87 months. (Id.) The Court departed upward to impose a sentence of 96 months incarceration on the ground that petitioner's criminal history category did not adequately reflect his true criminal history. (Id. at 19--21.)
Petitioner appealed his conviction and sentence to the Third Circuit, arguing that the Court erred in denying his motions to suppress physical evidence, specifically to suppress the gun retrieved from the bag on the ground during his arrest. On February 27, 2007, in a nonprecedential opinion, the Third Circuit affirmed the denial of the motions to suppress. The Third Circuit held that while the affidavit of probable cause supporting petitioner's arrest warrant was possibly flawed, "even including the information that Nigro alleges was omitted and deleting what he claims are misrepresentations does not vitiate the probable cause." United States v. Nigro, 218 F. App'x 153, 156 (3d Cir. 2007) (non-precedential). Moreover, the search of the bag found on the ground next to petitioner was "within both the temporal and geographic limitations necessary for a valid search incident to arrest." Id. at 157 (citing United States v. Myers, 308 F.3d 251, 266--67 (3d Cir. 2002)). Petitioner filed a Petition for Certiorari to the United States Supreme Court, which was denied on April 30, 2007.
On April 28, 2008, petitioner filed the instant Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion"). In the § 2255 Motion, petitioner contends that his counsel provided ineffective assistance. The details of his claims are as follows:
A. Counsel failed to adequately prepare for and perform during the suppression hearing and appeals (this claim is based on petitioner's arguments in Claims B, C, D, E, F, G, H, I, J, K, L, and M);
B. Counsel, after being appointed by the Court, simply had the suppression motions of prior counsel reinstated and failed to argue the merits of these motions;
C. Counsel failed to accept the Court's offer of a continuance to better prepare to argue the merits of petitioner's pro se motion for a Franks hearing and failed ...