The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
On January 4, 2006, Defendant entered a plea of guilty to three federal offenses in exchange for the termination of criminal proceedings in the Dauphin County Court of Common Pleas. Defendant was scheduled to go to trial that day in Dauphin County Court on charges of robbery and murder based on the murder of Sue Behrens at the Red Roof Inn in Dauphin County in March 1992. The guilty plea in federal court was pursuant to a plea agreement that Defendant entered into with the United States. An extensive colloquy was conducted during which the court explained the legal elements of the crime to which Defendant was pleading guilty, the rights he was surrendering by pleading guilty, and a factual basis for the plea was placed on the record. The court then accepted Defendant's guilty pleas.
Four months later, on May 10, 2006, however, Defendant filed a motion to withdraw his guilty plea. A hearing on that motion was held on May 15, 2006 at which Defendant testified. A second hearing was conducted on June 14, 2006 with Defendant now represented by attorney Gerald Lord. Attorney Thomas Thornton, Defendant's counsel for purposes of the guilty plea, withdrew his appearance so that he could testify at this proceeding. In addition to attorney Thornton's testimony, testimony was heard from Defendant, and attorney Paul Muller, who along with attorney Diane Morgan represented Defendant throughout the proceedings in the Dauphin County Court of Common Pleas.
By memorandum and order dated July 6, 2006, this court denied Defendant's motion to withdraw his guilty plea. On July 18, 2006, Defendant was sentenced on all three charges to a combined term of 35 years imprisonment.
Defendant appealed to the United States Court of Appeals for the Third Circuit which, by opinion dated November 6, 2008, affirmed this court's denial of Defendant's motion to withdraw his guilty plea. United States v. Kenley, 299 Fed. App. 184 (3d Cir. 2008.) On May 18, 2009, the United States Supreme Court denied Defendant's petition for writ of certiorari. Kenley v. United States, U.S. , 129 S.Ct. 2410 (2009). On September 18, 2009, Defendant filed a motion pursuant to 28 U.S.C. § 2255 and thereafter supplemented the motion with a memorandum and supplemental memorandum. The Government has responded and Defendant has filed a traverse. The matter is ripe for disposition.
A. Incompetency of Counsel
1. Issues Presented in Motion
The § 2255 motion sets forth claims of ineffective assistance of trial counsel: Paul Muller, Dauphin County; Thomas Thornton, Assistant Federal Public Defender; and Gerald Lord, court appointed counsel and appellate counsel. These claims are that (1) Thornton and Lord failed to raise the issue that the statute of limitations had expired as to the Hobbs Act Robbery and conspiracy charges, thus voiding the guilty plea as to those charges; (2) Thornton failed to review the felony information with Defendant prior to his plea; (3) Thornton misrepresented the actual sentence he could receive under the guidelines; (4) Muller failed to pursue a meaningful investigation of the charges in that he did not pursue (a) an alibi witness, (b) DNA discovery, and (c) exculpatory evidence (insanity issue); (5) Muller had a conflict of interest in that the Dauphin County Public Defender's Office represented some of the witnesses in the case; (6) Muller failed to pursue a meritorious defense.
Defendant also claims there was prosecutorial misconduct in that the Government (1) failed to produce discovery; (2) violated the terms of the proffer agreement; and (3) caused his wife to testify in violation of the spousal privilege.*fn1
2. Incompetency of Counsel Standard
A claim for ineffective assistance of counsel is evaluated under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The standard has two prongs. Petitioner must show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Id. at 687. The first prong requires petitioner to show that counsel made errors "so serious that counsel was not functioning as 'counsel' guaranteed by the Sixth Amendment." Id. This showing can be made by demonstrating that the attorney's performance was unreasonable under prevailing norms. United States v. Day, 969 F.2d 39, 42 (3d Cir. 1993). The second prong requires petitioner to show that the errors were "sufficiently serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. To establish prejudice, the petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result ...