The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER
Presently before the Court for disposition is the MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY filed pro se by Petitioner / Defendant Harold D. Price ("Price") (Document Nos. 36 and 38 ), the RESPONSE in opposition filed by the government (Document No. 39), and the PETITIONER'S TRAVERSE filed pro se by Harold D. Price (Document No. 40). For the reasons discussed below, the Court will deny the § 2255 motion without holding an evidentiary hearing.
The relief sought under 28 U.S.C. § 2255 is reserved for extraordinary circumstances. See Brecht v. Abrahamson, 507 U.S. 619 (1993). Section 2255 provides, in relevant part:
A prisoner in custody under sentence of a [federal] court... 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 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.
Although § 2255 includes a provision for a prompt evidentiary hearing, a federal court may deny a § 2255 motion without holding an evidentiary hearing if the "motion and the files and records of the case conclusively show" that the petitioner is not entitled to relief. 28 U.S.C. § 2255; see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005); Rule 8(a), 28 U.S.C. foll. § 2255.
Procedural and Factual Background
The parties and the Court are familiar with the extensive background facts of Price's criminal prosecution, conviction, and sentence. Therefore, the Court will not detail the facts again. However, the following is a brief recitation of the procedural facts salient to the issues presently pending before the Court.
On August 23, 2007, a criminal Complaint was filed against Price which charged him with Possession of a Firearm by a Convicted Felon, on or about May 3, 2007, in violation of Title 18, United States Code, §§ 922(g)(1) and 924(e)(1). In the Affidavit in Support of a Criminal Complaint, submitted by Ryan Michael Renning, Special Agent with the United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Special Agent Renning averred that a search of the Records of the Court of Common Pleas of Allegheny County, Commonwealth of Pennsylvania revealed that Price had been convicted four (4) times for drug trafficking crimes, each conviction punishable by a sentence which exceeds one (1) year.
On August 28, 2007, a federal grand jury in the Western District of Pennsylvania returned a one-count indictment in which Price was charged with Possession of A Firearm, on or about May 3, 2007, in violation of Title 18, United States Code, Sections §§ 922(g)(1) and 924(e)(1). Specifically, the Indictment charged Price with the unlawful possession of three (3) semi-automatic handguns after having been convicted of four (4) felony drug-trafficking offenses.
On August 28, 2007, Defendant, with counsel, appeared at an arraignment and pled Not Guilty to the charge. The court ordered Defendant detained pending trial because, inter alia, if convicted, he faced a mandatory minimum 15-year sentence of imprisonment. See Order of Detention Pending Trial (Document No. 19).
On April 1, 2008, Price, through counsel, filed the following pretrial motions: Motion in Limine to Compel the Government to Provide Defendant with a Statement of Uncharged Misconduct Evidence; Motion to Dismiss the Indictment on Jurisdictional Grounds; and Motion to Suppress Evidence. See Document Nos. 39, 40, and 41.
On May 2, 2008, the Court held an evidentiary hearing on Price's suppression motion. The record was kept open until May 19, 2008. On May 20, 2008, the record was closed after counsel for Defendant informed the Court that he would not be presenting any additional witnesses. After extensions, post-hearing briefs were timely by both sides. On July 24, 2008, the Court denied Defendant's suppression motion, as well as the other pretrial motions which had been filed on his behalf.
A pretrial conference was conducted on August 5, 2008, at which time the case was scheduled for jury trial on August 18, 2008. At the request of Defendant, the scheduled trial date was continued until September 8, 2008.
Pursuant to a written plea agreement between the parties, which was entered in Criminal Case No. 08-312, discussed infra, the government moved to dismiss the Indictment, which motion was granted.
On August 18, 2008, a two-count criminal Complaint was filed against Price which charged him with Possession With The Intent to Distribute Less than Fifty (5) kilograms of Marijuana, on or about May 3, 2007, in violation of Title 21, United States Code, §§ 841(a)(1) and 841(b)(1)(D), and Possession of a Firearm in Furtherance of a Drug Trafficking Crime, on or about May 3, 2007, in violation of Title 18, United States Code, § 924(c)(1)(A)(i). On August 20, 2008, the government filed an Information To Establish Prior Convictions, which established that Price had four (4) previous felony drug convictions in the Court of Common Pleas of Allegheny County, Pennsylvania.
On that same day, August 20, 2008, Price appeared before the Court, with counsel, and waived prosecution by indictment and pled guilty to both counts of the Information. A signed written plea agreement was made a part of the record which provided, inter alia, that Price was waiving most of his appellate rights and all of his collateral attack rights. The plea agreement also provided that after the imposition of sentence the government would move to dismiss Count One of the Indictment at Criminal No. 07-310.
A Presentence Investigation Report ("PSI") was prepared by the Probation Office on October 2, 2008, with an Addendum to the PSI prepared on November 18, 2008. On October 31, 2008, the government filed its Position with Respect to Sentencing Factors in which it reported that it had no objections, additions, and/or modifications to the PSI. On November 17, 2008, Defendant, through counsel, filed his Position with Respect to Sentencing Factors in which he reported that he had no objections to the guideline calculations contained in the PSI, but argued for a variance from the advisory guideline range under 18 U.S.C. § 3553(a). Defendant argued that his status as a "career offender" under the advisory Guidelines produced an extreme result which was not reasonable. Under the Career Offender Table for 18 U.S.C. § 924(c) Offenders, with a three-level reduction for acceptance of responsibility, Price was subject to the following sentencing guideline scheme: an advisory guideline range of imprisonment of 262-327 months with a Criminal History Score of VI. See USSG 4B1.1(c)(3).
The government filed its Supplemental Position With Respect to Sentencing Factors, in which it argued that Defendant's status as a "career offender" under the advisory Guidelines accurately reflected his extensive, dangerous criminal history and his high likelihood of recidivism.
A sentencing hearing was conducted on March 12, 2009, at which time the Court granted Price a three-level downward variance from the applicable advisory sentencing guidelines. Price was thereafter sentenced to a term of imprisonment of 210 months consisting of 114 months at Count One and 96 months at Count Two, such terms to be served consecutively, to be followed by 5 years of supervised release. Judgment was entered that same day.
On March 17, 2009, Defendant, through counsel, requested an extension of time in which to file a notice of appeal. By Order of Court dated March 18, 2009, Defendant's request was granted and Defendant was given an extension until April 27, 2009, to file a Notice of Appeal. The docket reflects that Price never filed a Notice of Appeal.
On April 23, 2009, Price, pro se filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Document No. 31) in which he asked the Court to vacate, set aside, or correct his sentence based on claims of alleged ineffective assistance of counsel. In accordance with the Miller rule enunciated by the United States Court of Appeals for the Third Circuit in United States v. Miller, 197 F.3d 644 (3d Cir. 1999), the Court advised Price that he had a number of options and he may:
(1) have his motion ruled upon as filed;
(2) if his motion is not styled as a § 2255 motion, have his motion recharacterized as a § 2255 motion and heard as such, but lose his ability to file successive petitions absent certification by the court of appeals; or
(3) withdraw his motion, and file one all-inclusive § 2255 petition within the one-year statutory period.
Price notified the Court that he was electing to withdraw that motion and would file one all-inclusive Section 2255 petition within the one year statutory period.
On February 11, 2010, Price filed the instant Section 2255 motion in which he raises two ineffective assistance of counsel claims: (i) that counsel allegedly induced him to plead guilty against his will to charges that "are neither true nor supported by the evidence;" and (ii) that counsel failed to preserve the ability of Price to file a direct appeal and/or failed to file a direct appeal from the sentence.
Under 28 U.S.C. § 2255, a judge must determine whether to summarily dismiss the petition under Rule 4(b) of the Rules Governing § 2255 Proceedings ("If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party."), or to order an evidentiary hearing under Rule 8 of the Rules Governing § 2255 Proceedings.
A district court should hold an evidentiary hearing in section 2255 cases unless "the motion, files and records show conclusively that the movant is not entitled to relief." United States v. Nahodil, 36 F.3d 323 (3d Cir. 1994). In deciding whether to hold a hearing, a judge may draw upon personal knowledge and recollection of the events that occurred in his or her presence. See Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1077 (3d Cir. 1985).
After reviewing the filings in this case, the complete record, and drawing upon the Court's personal knowledge and recollection of the events that occurred in its presence, the Court finds that an evidentiary hearing is not required because Price has failed to raise any genuine issue of material fact. See United States v. Essig, 10 F.3d 968, 976 (3d Cir. 1993). Additionally, the files and records of the case conclusively establish that Price is not entitled to relief. United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005). Therefore, the Court will proceed to the merits of the § 2255 motion.*fn1
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel and exists "in order to protect the fundamental right to a fair trial."
Lockhart v. Fretwall, 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 684 (1984)).
The United States Supreme Court has formulated a two-part test for determining whether counsel rendered constitutionally ineffective assistance: (i) whether counsel's performance was unreasonable; and (ii) whether counsel's unreasonable performance actually prejudiced the defense. Strickland, 466 U.S. at 687. To determine whether counsel performed below the level expected from a reasonably competent attorney, it is necessary to judge counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct. Id. at 690. A petitioner who claims that he or she was denied effective assistance of counsel carries the burden of proof. United States v. Cronic, 466 U.S. 648, 658 (1984).
The first prong of the Strickland test requires that a defendant establish that his attorney's representation fell below an objective standard of reasonableness by committing errors so serious that he or she was not functioning as "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 688. A court must indulge 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 totality of the circumstances, the challenged action "might be considered sound trial strategy." Id. at 689. The question is not whether the defense was free from errors of judgment, but whether counsel exercised the customary skill and knowledge that normally prevailed at the time and place. Id.
The second prong requires a defendant to demonstrate that counsel's errors deprived him of a fair trial and the result was unfair or unreliable. Id. To prove prejudice, a 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. Id. at 694. A "reasonable probability" is one that is sufficient to undermine confidence in the outcome. Id.
The Court of Appeals for the Third Circuit has endorsed the practical suggestion in Strickland to consider the prejudice prong before examining the performance prong "because this course of action is less burdensome to defense counsel." United States v. McCoy, 410 F.3d 124, 132 n.6 (3d Cir. 2005); see Strickland, 466 U.S. at 694 (stating that, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so," the prejudice prong should be examined before the performance prong "to ensure that ineffectiveness claims do not become so burdensome to defense counsel that the entire criminal justice system suffers as a result").
Furthermore, the United States Supreme Court has determined that under the Strickland test, a reviewing court must "assess counsel's overall performance throughout the case to determine whether the 'identified acts or omissions' overcome the presumption that counsel rendered reasonable professional performance." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
As this Court observed, the government had substantial evidence of Price's guilt in this case, of which he and his counsel were well aware when he pled guilty on the charges contained in the Information. The testimony and evidence adduced during the suppression hearing presented a clear situation in which Price was found to be in possession with intent to distribute less than 50 kilograms of marijuana and possession of a firearm in furtherance of a drug-trafficking crime.
On May 3, 2007, Pennsylvania State Police troopers arrested Price at his residence following a domestic dispute which involved Price and his wife. Defendant was placed under arrest for simple assault and terroristic threats and transported to the police station for processing. One trooper remained on the scene and interviewed Price's wife, the victim. He asked during the course of that interview whether Price had any weapons in the house. Mrs. Price told Trooper Callahan that she recently had observed Price with a semi-automatic handgun in the residence, but that she was uncertain where he kept it. Trooper Callahan then asked Mrs. Price for consent to search the residence, the detached garage, and the GMC Suburban. She provided both verbal and written consent for the search.
Thereafter, Trooper Callahan discovered and seized three (3) semi-automatic firearms, approximately three (3) pounds of marijuana, marijuana smoking devices, two (2) digital scales, and a small amount of cocaine. Mrs. Price denied ownership of the firearms or the drugs and law enforcement databases confirmed that Mrs. Price had never purchased, owned, or transferred a firearm in Pennsylvania. See Memorandum Opinion and Order of Court denying motion to suppress evidence (Document No. 57 - Criminal No. 07-cr-310); and Transcript of Waiver of Indictment and Change of Plea Proceedings at 28-30 (Document No. 41- Criminal No. 08-312).
Price seeks to challenge both his guilty plea and his waiver of rights to appeal and file a collateral attack of his conviction and sentence. The Court will address the validity of the guilty plea separately from the appeal waiver. Although the tests overlap, they are not identical and in the context of this case, it is appropriate to evaluate the guilty plea itself at the outset.
1. "Counsel Ineffective for Inducing Petition to Plea Guilty Against Petitioner's Will"
Price argues that "it cannot be said that Price's guilty plea was knowingly and intelligently made." Mot. at 21. This claim can be dismissed rather summarily because the record completely belies Price's allegation.
The established test for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970). Where a defendant is represented by counsel and enters a guilty plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice "was within ...