The opinion of the court was delivered by: Chief Judge Kane
On July 28, 2009, Defendant Nicholas Aquino filed a motion to vacate, correct, or set aside sentence brought pursuant to 28 U.S.C. § 2255 (Doc. No. 57) and brief in support (Doc. No. 58). In response to the Court's Miller-Mason notice of election, Aquino elected to have the motion ruled on as filed. (Doc. No. 62.) The Government was served with the motion and filed a brief in opposition to the motion. (Doc. Nos. 63, 65.) Aquino filed a reply, and the motion is now ripe before the Court for disposition.*fn1 (Doc. Nos. 68, 69.) For the reasons that follow, the motion will be denied.
From mid to late 2005, a spate of robberies occurred in Cumberland and Dauphin counties, Pennsylvania. First, on July 1, 2005, a restaurant by the name of Chronies Hangout was robbed by two masked individuals who bound the hands and feet of the employees with duct tape and displayed a .380 pistol before getting away with $5,390 cash. On July 16, 2005, a second restaurant, Croc-n-Berry's, was robbed in the same way as Chronies Hangout; $11,844.62 was stolen. On July 23, 2005, the Weis Market in Carlisle was robbed by two individuals again using duct tape to bind the employees and displaying weapons. This time, the robbers escaped with $25,941. On August 21, 2005, the Sierra Madre restaurant was robbed after closing by two masked individuals who forced the employees back into the establishment after they had just exited for the evening. The robbers evaded police despite a high speed car chase, but no money was successfully taken. On September 6, 2005, approximately $18,000 was stolen from the Weis Market in Camp Hill. During this burglary, however, only one person entered the building to conduct the robbery and bind the victims with duct tape. The perpetrator maintained cell phone contact with a second party outside the building during the robbery.
On August 23, 2006, Thomas Aquino was indicted in the Middle District of Pennsylvania for commission of these five robberies, two counts of firearm use in furtherance of the robberies, and one count of conspiracy to commit the robberies. (Doc. No. 1.) Aquino allegedly committed the robberies with Paul Butler, the two together recovering nearly $60,000. (Id. at 9-10.) By the time of Aquino's indictment, Butler had already been apprehended by the police, had named Aquino as a co-conspirator, and was cooperating with government efforts to prosecute Aquino.
At the arraignment, Attorney Dennis Boyle was appointed to represent Aquino. (Doc. No. 8.) Aquino initially entered a plea of not guilty. (Id.) On January 17, 2007, however, Aquino entered into an agreement to plead guilty to Counts Seven and Eight of the indictment: possession of a firearm in furtherance of a crime of violence and "criminal conspiracy to interfere with commerce by threats of violence." (Doc. Nos. 22, 30.) The agreement also stated that the Government would move for sentencing adjustments for acceptance of responsibility and substantial assistance if Aquino cooperated in providing more information to the Government. (Id.) During the change of plea proceeding, the Government amended the plea agreement to state that Count Seven involved "brandishing a firearm" rather than simply "possessing" one. (Doc. No. 46 at 2.)
On May 25, 2007, Aquino was sentenced to 220 months imprisonment. (Doc. No. 42.) At the sentencing hearing, Attorney Boyle made several objections to the presentence report. (Doc. No. 47.) He objected to the finding that bodily injury occurred in one of the robberies, to the enhancements for bodily injury that was caused by co-conspirator Butler, to the enhancement for abducting the victims, to the enhancement for brandishing a firearm on the basis that the firearm was only used by his co-conspirator, and to a prior arrest and conviction used to calculate his sentencing history. (Doc. No. 47 at 3-4, 6-7, 15.) The Court found in favor of the Government on all objections.
Boyle filed an appeal on Aquino's behalf, challenging the Court's findings at sentencing that an abduction occurred and that more than di minimis bodily injury occurred. (Doc. No. 40.) Aquino informed Attorney Boyle that he was dissatisfied with the grounds appealed, and when Boyle did not amend his appellate brief, Aquino wrote to the Third Circuit Court of Appeals to supplement the pleadings. (Doc. No. 58 at 46-49.) The appeal and Aquino's motion to supplement the appeal were denied. (Doc. No. 54.)
In this motion, Aquino raises two grounds of ineffective assistance of counsel by Attorney Boyle. Aquino first alleges that Boyle did not conduct adequate investigation and discovery into the facts of the case. Aquino suggests that, had Boyle conducted more investigation, he would have discovered evidence favorable to the defense, resulting in Aquino going to trial rather than taking the plea agreement. Second, Aquino argues that Boyle's representation was deficient at the sentencing and appellate stage because he "failed to use the court record and/or the police reports to the crime" to show that the abduction finding was improper. The Government contends that Aquino has failed to show prejudice under either argument.
A defendant alleging an ineffective assistance of counsel claim must show that his counsel's performance was deficient, which is to say that it "fell below an objective standard of reasonableness," and that he was prejudiced by his counsel's deficient performance. Outten v. Kearney, 464 F.3d 401, 414 (3d Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). There is a "strong presumption" that counsel acted reasonably, and "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 689-90.
A. Ineffective Assistance in Pre-Guilty Plea Proceedings
A guilty plea will stand unless it does not represent a "voluntary and intelligent choice." Hill v. Lockhart, 474 U.S. 52, 56 (1985). "Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice 'was within the range of competence demanded of attorneys in similar cases.'" Hill, 474 U.S. at 56. In such circumstances, the prejudice question "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Id., at 58; Weeks v. Snyder, 219 F.3d 245, 257 (3d Cir. 2000). To satisfy the prejudice prong, the defendant must demonstrate that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." A reasonable probability of prejudice is a "probability sufficient to undermine confidence in the outcome." Id. The law provides that an attorney does have a duty to conduct adequate discovery and a reasonable investigation into the facts of a case, but an attorney is allowed deference in his choice of reasonable trial strategy. See Williams v. Taylor, 529 U.S. 362, 397 (2000) ("[T]rial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant's background."); Hess v. Mazurkiewicz, 135 F.3d 905, 908 (3d Cir. 1998) ("Because Ling's trial strategy allegedly resulted from incomplete investigation, however, his decisions are entitled to a lesser degree of deference."); United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997) ("[A]n attorney must investigate a case, when he has cause to do so, in order to provide minimally competent professional representation.").
Aquino asserts that Boyle did not file for discovery or have a private investigator investigate the robberies. (Doc. No. 58 at 9.) He argues that, had Boyle conducted an adequate investigation, he would have recommended that Aquino go to trial due to the weakness of the Government's evidence against him. Aquino suggests that the Government's case against him was quite weak in light of the clear self-interest of Butler, the only witness able to identify Aquino as a participant in the robberies. To support this theory, Aquino submits the following evidence which he alleges would have been seen by a jury as exculpatory: Third-parties Dennis Jenkins, Jr., and his brother were overheard as having bragged about committing two of the robberies after they occurred (id. at 9, 29); witness Ha Truong told police she suspected that the boyfriend of one of Chronies Hangout's employees may have conducted the Chronies Hangout robbery (id. at 9, 30); witness Katie Anderson and co-conspirator Luis Colon implicated Butler for two of the robberies but did not identify Aquino (id. at 10, 34); Deborah Sgrignoli, victim of the Weis Market robbery, identified Butler as a store employee with knowledge of the way money was kept in the store, but identified neither Butler nor Aquino as the robber (id. at 10, 36); and neither Audrea Battle nor Diane Nolan, both of whom knew Aquino ...