The opinion of the court was delivered by: James Knoll Gardner, United States District Judge
This matter is before the court on the pro se Motion to Vacate, Set Aside, or Correct Sentence filed July 12, 2007 pursuant to 28 U.S.C. § 2255 by defendant Holly Williams. Also before the court is defendant's letter request dated February 10, 2008 requesting appointment of counsel for purposes of her § 2255 motion, and defendant's Brief in Support of Request for Appointment of Counsel, which brief was filed August 21, 2008. Finally, before the court is the Government's Motion for Leave to File Responses Two Days Out of Time, which motion was filed September 17, 2008. The Government's Response to Motions for Appointment of Counsel and for Relief under 28 U.S.C. § 2255 also was filed September 17, 2008.
For the following reasons, I grant the Government's Motion for Leave to File Responses Two Days Out of Time and deny defendant's Motion to Vacate, Set Aside, or Correct Sentence and request for appointment of counsel. I also deny a certificate of appealability.
On August 26, 2003, a federal grand jury in the Eastern District of Pennsylvania returned an eighteen-count Indictment charging defendant and co-defendants Rashiad Snead and June Chance with conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951 (Count One), interference with commerce by robbery, in violation of 18 U.S.C. § 1951 (Counts Two through Nine); using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Counts Ten through Seventeen); and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count Eighteen, which applied to defendant Snead only).
Specifically, defendant Williams was named in Counts One through Twelve and Fourteen through Seventeen of the Indictment. On April 1, 2004, pursuant to a written Guilty Plea Agreement, defendant Williams entered a plea of guilty to Counts One, Two, Three, Four, Six, Seven, Eight, Nine, Eleven and Twelve of the Indictment.
On September 22, 2005, the government filed a Motion to Permit Departure from Guideline Sentencing Range and from Mandatory Minimum Sentence under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). On October 6, 2005, defendant was sentenced by me. At sentencing, the government moved to dismiss Counts Ten, Fourteen, Fifteen, Sixteen and Seventeen of the Indictment. I granted that motion. Although defendant was facing a possible maximum penalty of life imprisonment, including a 32-year mandatory minimum, I granted the government's motion for downward departure and sentenced defendant to a total of 108 months imprisonment. At all relevant proceedings, including the guilty plea hearing and sentencing, defendant was represented by court-appointed counsel, Kurt B. Geishauser, Esquire.
On October 25, 2005, defendant filed a Notice of Appeal from the Judgment in a Criminal Case filed October 17, 2005. On March 6, 2006, the government filed a motion to enforce the appellate waiver in defendant's written plea agreement. On June 20, 2006, the United States Court of Appeals for the Third Circuit granted the government's motion to enforce the appellate waiver and dismissed defendant's appeal. On July 12, 2007, defendant, acting pro se, filed the within motion for habeas corpus relief under 28 U.S.C. § 2255, together with a request to proceed in forma pauperis for purposes of her § 2255 motion.
On February 13, 2008, defendant submitted the within letter request to the Clerk of Court seeking appointment of counsel, but did not support her request with a brief or affidavit alleging specific facts in support of her request or her § 2255 motion. By Order dated July 18, 2008, I granted petitioner's request to proceed in forma pauperis and gave defendant until on or before September 18, 2008 to file a motion for appointment of counsel accompanied by an appropriate brief or affidavit.*fn1 On August 21, 2008, defendant filed her Brief in Support of Request for Appointment of Counsel.
By Order dated August 27, 2008, I gave the government until on or before September 15, 2008 to respond to defendant's § 2255 motion and request for appointment of counsel. On September 17, 2008, the government filed its within Motion for Leave to File Responses Two Days Out of Time, together with its brief in response to defendant's § 2255 motion and request for appointment of counsel. As an initial matter, I grant the Motion for Leave to File Responses Two Days Out of Time and consider the government's brief timely.
CONTENTIONS OF THE PARTIES
Defendant's § 2255 motion enumerates three grounds in support of her request for modification of her sentence. First, she contends that she was denied effective assistance of counsel because the government "failed to establish proof of charge and counsel did not object". Second, she alleges a violation of due process because her guilty plea was "unlawfully induced", and was "not made voluntarily or with the understanding of the nature of the charge or consequences of the plea". Finally, defendant alleges a violation of the Fourteenth Amendment to the United States Constitution because her attorney failed "to conduct [an] evidentiary hearing which would have established that defendant did not actually possess [the] weapon defendant was charged with". (Defendant's § 2255 motion, page 6.)
In her Brief in Support of Request for Appointment of Counsel, defendant sets forth her contentions more specifically. She avers that her guilty plea was not entered intelligently because Attorney Geishauser and the court failed to explain the elements of the crimes with which she was charged, and that she was not fully aware of the relevant circumstances and likely consequences of entering a guilty plea. Moreover, she contends that Attorney Geishauser misled her regarding the "degree of the offense" to which she pled guilty.
Defendant further contends that the government failed to prove, beyond a reasonable doubt, that she used a weapon in violation of 18 U.S.C. § 924(c)(1). Finally, defendant avers that the court imposed an illegal sentence resulting from an incorrect application of the United States Sentencing Guidelines, leading to an erroneous upward departure from the correct guideline range. Moreover, based on these contentions regarding the merits of her § 2255 motion, defendants seeks appointment of counsel to assist her with her § 2255 motion.
The government contends that defendant's § 2255 motion and request for appointment of counsel should be denied. Specifically, regarding defendant's contends that her attorney was ineffective for not objecting to the government's alleged failure to establish "proof of charge", the government avers that at the change of plea hearing, defendant listened to the factual basis for the plea, understood those facts, and admitted them. Therefore, the government contends that defendant's attorney was not ineffective for failing to object to the "proof of charge". Moreover, the government notes that at the guilty plea hearing, defendant stated that she was satisfied with her attorney's services and that he had provided effective assistance.
Regarding defendant's assertion that her plea was unlawfully induced and was not made voluntarily or with knowledge of the consequences of her plea, the government responds that the record of the guilty plea hearing belies these contentions. Specifically, the government avers that the court reviewed all of defendant's constitutional rights, including her right to plead not guilty and proceed to trial; reviewed the terms of defendant's plea agreement; confirmed that no one had forced, threatened, coerced, intimidated or used undue or improper influence to get her to plead guilty; and explained all of the possible maximum and minimum penalties for the offenses to which she was pleading guilty, and confirmed that she understood them.
Moreover, the government states that at the guilty plea hearing, defendant further confirmed that she was pleading guilty of her own free will, and that she was pleading guilty because she was, in fact, guilty of the offenses charged. The government contends that based on the guilty-plea colloquy, the court found defendant's guilty plea to be knowing and voluntary, and avers that nothing in the record suggests otherwise.
Regarding defendant's contention that her Fourteenth Amendment rights were violated by her attorney's failure to request an evidentiary hearing on whether she actually possessed the weapons with which she was charged, the government avers that defendant admitted to conspiring with her co-defendants to rob several stores, and that during those robberies, firearms were brandished. The government contends that although defendant did not actually enter the stores or brandish the weapons, she served as the getaway driver and shared in the proceeds, and is therefore responsible for the weapons brandished.
Finally, the government contends that defendant's request for appointment of counsel should be denied because there is no right to counsel on collateral attacks to a conviction in non-capital cases. Moreover, the government avers that the interests of justice do not warrant such appointment in this case because defendant's claims are meritless and there is no need for an evidentiary hearing.
Title 28 of United States Code section 2255 provides federal prisoners with a vehicle for challenging an unlawfully imposed sentence. Section 2255 provides:
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 a 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.
A motion to vacate sentence under § 2255 "is addressed to the sound discretion of the court." United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980). A petitioner may prevail on a § 2255 habeas claim only by demonstrating that an error of law was constitutional, jurisdictional, "a fundamental defect which inherently results in a complete miscarriage of justice", or an "omission inconsistent with the rudimentary demands of fair procedure". Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, 421 (1962).
Defendant's § 2255 Motion The government's brief notes, in its recitation of the procedural history of this matter, that on defendant's direct appeal the government successfully sought to enforce the appellate waiver contained within defendant's guilty plea agreement. However, the government here does not seek to enforce the similar provision of the agreement regarding waiver of defendant's right to a collateral appeal. Rather, the government's brief addresses each of defendant's contentions on the merits. Accordingly, I address the grounds for defendant's motion on the merits without discussion of whether defendant has waived her right to take this collateral appeal.
All three of defendant's grounds for relief are essentially claims of ineffective assistance of counsel.
Therefore, I address them together. Specifically, defendant contends that Attorney Geishauser was ineffective for failing to object to the government's alleged failure to establish "proof of charge";*fn2 that her guilty plea was not knowing and voluntary because Attorney Geishauser failed to fully explain to her the consequences of entering such a plea; and that Attorney Geishauser failed to request an evidentiary hearing on whether she actually possessed the weapons with which she was charged.*fn3
A claim of ineffective assistance of counsel involves two elements which must be shown by defendant: (1) counsel's performance must have been deficient, meaning that counsel made errors so serious that he was not functioning as "the counsel" guaranteed by the Sixth Amendment; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).
To establish a deficiency in counsel's performance, a convicted defendant must demonstrate that the representation fell below an "objective standard of reasonableness" based on the particular facts of the case and viewed at the time of counsel's conduct. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-2065, 80 L.Ed.2d at 693-694; Senk v. Zimmerman, 886 F.2d 611, 615 (3d Cir. 1989). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy'". Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-695 (internal citation omitted).
To establish the second Strickland prong, "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ...