The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is a motion filed pursuant to 28 U.S.C. § 2255. The matter has been fully briefed and is ripe for disposition. The procedural history of this case is adequately set forth in the parties' briefs and will not be repeated in its entirety herein. Briefly, Defendant Anthony entered into a conditional plea agreement pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedures in which he reserved the right to appeal this court's ruling on his pretrial motions. On September 11, 2003, Anthony was sentenced on Count II of a Third Superseding Indictment after numerous delays following the entry of his guilty plea. Count II of the Third Superseding Indictment charged him with unlawful distribution and possession with intent to distribute fifty grams or more of crack cocaine and 500 grams or more of cocaine hydrochloride from on or about December 6, 1998 up to and including April 25, 2002.
Defendant was sentenced to a term of imprisonment of 360 months. He appealed to the Third Circuit Court of Appeals. The appeal was denied in its entirety. He filed a petition for writ of certiorari and the writ was granted. (See Anthony v. United States, 543 U.S. 137 (2005). The case was remanded to the court of appeals which vacated the petitioner's sentence and directed this court to resentence him in accordance with United States v. Booker, 543 U.S. 220 (2005). This court then resentenced Defendant to a term of imprisonment of 240 months. Defendant appealed and the court of appeals affirmed this sentence.
The instant motion raises issues concerning competency of trial and appellate counsel. Defendant claims that (1) trial counsel should not have had petitioner plead to Count II of the Third Superseding Indictment as it was duplicitous; (2) trial counsel should not have advised him not to speak to the probation officer about his involvement in the offense, thereby depriving him of a three point reduction for acceptance of responsibility; (3) trial counsel gave him improper advice as to his potential sentence;*fn1 and (4) appellate counsel failed to raise on appeal his claim of an illegal stop of his vehicle.
A. 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 of the proceedings would have been different." United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000). This standard applies as well to ineffective assistance claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985).
B. Count II Duplicity Claim
Count II charges Defendant with unlawful distribution and possession with intent to distribute 50 grams or more of crack cocaine and 500 grams or more of hydrochloride. Petitioner claims that because Count II combines two crimes in one count, the indictment is duplicitous.
Section 841(a)(1) criminalizes the possession of a "controlled substance" -- not possession of a specific controlled substance or group of controlled substances. An indictment charging a defendant under 21 U.S.C. § 841(a)(1) for simultaneous possession of different controlled substances is not duplicitous or multiplicitous and does not violate the Double Jeopardy Clause. United States v. Ausler, 395 F.3d 918 (8th cir. 2005); United States v. Richardson, 86 F.3d 1537, 1553 (10th Cir. 1996). Counsel's failure to raise that issue does not amount to incompetency.
C. Acceptance of Responsibility
At the plea colloquy, Defendant denied any involvement with Tyrone Smith and some of the dates of drug sales listed in the indictment. The court explained to him the definition of "relevant conduct" and warned him that his limited admission might impact on his receiving credit for acceptance of responsibility. (Trans. of Plea Colloquy at p. 17, doc. 329.) It was Defendant's position at the guilty plea, his interview with the probation officer for purposes of the presentence report, and at sentencing, that he was not responsible for the relevant conduct. Defendant cannot now claim that he wanted to accept responsibility for relevant conduct and counsel told him not to; this refusal to ...