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. Initially, Defendant Moore filed a § 2255 motion on November 6, 2009 but withdrew that motion on December 3, 2009 after this court issued an administrative order advising him of the limitations of such motions. Defendant Moore then filed the instant petition on December 31, 2009.
The procedural history of this case is adequately set forth in the parties' briefs and will not be repeated in its entirety herein. Moore and his co-defendant Carter were charged on March 28, 2007 with Armed Bank Robbery, Conspiracy, and Use of a Firearm to Commit a Crime of Violence. On June 21, 2007, both defendants pleaded guilty to the Use of a Firearm count. Moore reserved the right to challenge the applicability of the ten year mandatory minimum sentencing provision under 18 U.S.C. § 924(c).
A hearing was held to address the issue as to whether Moore could have reasonably foreseen that Carter might have brandished or discharged the firearm during the robbery. This court filed a memorandum opinion on June 26, 2007, finding that the ten year mandatory minimum penalty was applicable. Both defendants were sentenced on October 9, 2007. Defendant Moore appealed. By order dated December 17, 2008, the United States Court of Appeals for the Third Circuit affirmed Moore's sentence. The mandate was filed on January 8, 2009.
A. Summary of § 2255 Petition
Moore claims in his petition that his counsel was ineffective because (1) counsel created a conflict of interest in failing to investigate a letter, written by his co-defendant Carter to this court,*fn1 taking responsibility for the bank robbery and/or discharge of the firearm during the robbery; (2) counsel failed to investigate the sufficiency of the evidence for the charge of conspiracy; (3) counsel failed to investigate the sufficiency of the evidence for use of a firearm during a crime of violence; (4) counsel failed to investigate the sufficiency of the evidence into whether Moore saw the magazine to Carter's gun before or after Carter robbed the bank; and (5) Moore's plea agreement was not voluntary and intelligently made due to counsel's deficient performance and effectiveness. (Petition at p. 5.)
B. 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).
1. Failure To Investigate the Contents of Carter's Letter in Which He Takes Responsibility For the Robbery
A hearing on the allegations in the petition was held on February 22, 2010. Attorney Ari Weitzman, original counsel for Defendant Moore, testified that he had contacted counsel for Carter and requested counsel's consent to interview Carter concerning the contents of his letter. Consent was not given. No subpoena was issued to Carter because of Fifth Amendment implications to Carter. In the absence of being able to interview Carter, there was nothing further that counsel could do.
2. Failure to Investigate Evidence of Conspiracy,*fn2 Use of a Firearm, and Foreseeability
Attorney Weitzman testified at the habeas hearing that the evidence against his client was overwhelming. He cited to the evidence presented by the ...