The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO VACATE SENTENCE (DOC. NO. 95) AND RELATED PENDING MOTIONS (DOCS. NO. 107, 109, 110, 115 AND 116)
Before the Court are six pending post-conviction motions filed pro se by defendant Regonaldo N. Demelio. By way of background, on April 28, 2006, following a jury verdict of guilty on a charge of threatening a federal law enforcement officer in violation of 18 U.S.C. § 115(a), this Court sentenced defendant to a term of imprisonment of 72 months followed by three years supervised release. At trial, defendant was represented by retained counsel, but the Court appointed an Assistant Federal Public Defender for sentencing. The 72 month term of imprisonment is the statutory maximum, and it represented an upward variance from the advisory guideline sentence range of 37 to 46 months.
On direct appeal, defendant was represented by another AFPD. On December 26, 2007, defendant's conviction and the judgment of sentence were affirmed by the United States Court of Appeals for the Third Circuit. On August 21, 2008, defendant filed a timely Motion to Vacate under 28 U.S.C. § 2255 (Doc. No. 95) The five additional pending motions are all filed in support of the Motion to Vacate.
After careful consideration of defendant's Motion to Vacate and the government's response thereto, and of the various other pending motions and responses, the Court will schedule an evidentiary hearing on defendant's claims of ineffective assistance of trial counsel and will appoint an attorney to represent him in these proceedings. The Court will discuss the motions and rulings in order of filing.
Motion to Vacate (Doc. No. 95)
As noted, defendant's Motion to Vacate raises claims of ineffective assistance of trial counsel in violation of the Sixth Amendment for several reasons.*fn1 First, defendant asserts that his trial counsel, Mr. Robert Downey, so thoroughly failed to prepare, investigate and try the defense that he was effectively denied counsel altogether, and that under United States v. Cronic, 466 U.S. 648, 659 (1984), therefore, counsel's failures were the sort of systemic failure that require this Court to grant his Motion to Vacate without regard to a showing of prejudice, which is presumed.
Defendant's reliance on Cronic is misplaced, as such a presumption of prejudice under Cronic is only appropriate in cases of complete absence of counsel at a critical stage of the proceeding or circumstances of that same magnitude. Id. at 466 U.S. 659 n.25-26. Trial counsel's performance in this case did not approach the sort of denial of counsel that might trigger Cronic's presumption of prejudice. See Ditch v. Grace, 479 F.3d 249, 256 (3d Cir. 2007) ("denial of counsel at any critical stage at which the right to counsel attaches does not require a presumption of prejudice. Rather, a presumption of prejudice applies only in cases where the denial of counsel would necessarily undermine the reliability of the entire criminal proceeding.")
(citing Hammonds v. Newsome, 816 F.2d 611, 613 (11th Cir. 1987) (interpreting Cronic in a limited fashion) and Takacs v. Engle, 768 F.2d 122, 124 (6th Cir. 1985) (applying harmless error analysis).
However, the Court finds defendant's other assertions of ineffective assistance of counsel to be of arguable merit. Section 2255 of Title 28 of the United States Code provides that:
A prisoner in custody under sentence of a court established by Act of Congress... 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. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
When a defendant brings a motion to vacate sentence pursuant to section 2255, the district court has discretion to conduct an evidentiary hearing. United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008) (citing United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005)). Exercise of that discretion is constrained, however, and the district court must hold an evidentiary hearing "'unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.'" Id. (quoting Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). This is not a high bar for a movant to meet, especially since the court, in considering a section 2255 claim, "'must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'" Id. (quoting Forte, 865 F.2d at 62); see also Rules Governing § 2255 Proceedings, Rules 4 and 8. Thus, a § 2255 motion "'can be dismissed without a hearing [only] if (1) the [movant's] allegations, accepted as true, would not entitle the [movant] to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)). A district court's decision not to hold an evidentiary hearing may be reversed for abuse of discretion if "the files and records of the case are inconclusive on the issue of whether [the] movant is entitled to relief." Id. at 131 (citing Solis v. United States, 252 F.3d 289, 294-95 (3d Cir. 2001)).
The standard for deciding an ineffective assistance of counsel claim is that set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In order to succeed on such a claim, a defendant must show (1) that his or her counsel's performance was deficient and (2) that he or she was prejudiced by it. Lilly, 536 F.3d at 195 (citing Strickland, 466 U.S. at 687). The Court of Appeals for the Third Circuit has "endorsed the practical suggestion in Strickland to consider the prejudice prong before examining the performance of counsel ...