The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania
Pending before the Court is Petitioner Edwin Michael Brown's writ of habeas corpus pursuant to 28 U.S.C. § 2255. The motion has been fully briefed and is ripe for disposition. For the following reasons, the Court will deny the habeas petition.
On November 16, 2005, a grand jury issued a three-count indictment charging Petitioner and Co-Defendant Jaycee Wise ("Wise"). (Doc. No. 1.) Count I charged Petitioner and Wise with possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). (Id. at 1.) Count II charged Petitioner and Wise with possession with intent to distribute five grams and more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). (Id. at 2.) Count III charged Petitioner and Wise with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). (Id. at 3.) On January 25, 2006, a grand jury returned a superceding indictment against Petitioner and Wise. (Doc. No. 36.) The superceding indictment alleged the same violations as before; yet the time frame for the violations was expanded to "[o]n or about February 2005 to May 27, 2005," and the drug amount was increased to 50 grams and more of cocaine base. (Id. at 2-3.)
On April 5, 2006, a jury found Petitioner and Wise guilty of all charges. The jury also found that Petitioner possessed with intent to distribute and distributed 50 grams or more of cocaine base and that Petitioner brandished a firearm in violation of 18 U.S.C. § 924(c). On November 20, 2006, Petitioner was sentenced by this Court to 324 months imprisonment, consisting of: 240 months on Count II; 120 months on Count III, to be served concurrently to Count II; and 84 months on Count I, to be served consecutively to Count II and III. (Doc. No. 114.)
Petitioner appealed his conviction and sentence. On February 12, 2008, the Third Circuit Court of Appeals affirmed the judgment of conviction and sentence. See United States v. Wise, 515 F.3d 207 (3d Cir. 2008). The appellate court rejected Petitioner's arguments that there was insufficient evidence to support his convictions. Id. at 214. In addition, the appellate court affirmed this Court's finding that Petitioner was responsible for selling more than 150 grams of cocaine base, id. at 218-19, and this Court's refusal to impose a sentence below the sentencing guideline range. Id. at 223.
On October 31, 2008, the Court received Petitioner's initial motion to vacate pursuant to 28 U.S.C. § 2255. (Doc. No. 150.) On September 29, 2009, after Petitioner filed his notice of election and a revised habeas motion,*fn1 this Court ordered that the motion be served on the Government. (Doc. No. 170.) The United States filed its response on October 28, 2009. (Doc. No. 172.) Petitioner filed his reply on November 16, 2009. (Doc. No. 173.) On April 12, 2010, the Court held a hearing on Petitioner's writ of habeas corpus. Following the hearing, the parties submitted supplemental briefs. (See Doc. Nos. 185, 187, 188.) The matter is now ripe for disposition.
Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct the prisoner's sentence. However, § 2255 does not afford a remedy for all errors that may have been made at trial or sentencing. United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993) (citing United States v. Addonizio, 442 U.S. 178 (1979)). "The alleged error must raise 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. (citation omitted). Furthermore, § 2255 generally limits federal prisoners' ability to attack the validity of their sentences to four grounds. Hill v. United States, 368 U.S. 424, 426 (1962). A prisoner may claim relief by alleging that: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is "otherwise subject to collateral attack." Id. at 426-27 (citing 28 U.S.C. § 2255).
In order to survive, a collateral attack of a sentence based upon a claim of ineffective assistance of counsel must meet a two-part test established by the Supreme Court. Specifically, a petitioner must establish both: (1) that the performance of counsel fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's errors, the result of the sentencing hearing would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 691-94 (1984); George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001).
In his original motion to vacate, Petitioner raised five different issues supporting his ineffective assistance of counsel claim.*fn2 At the April 12, 2010 hearing, Petitioner's counsel Stephen Becker informed the Court that Petitioner would be pursuing two main claims, thereby waiving several of the arguments raised in Petitioner's pro se filing.*fn3 First, Petitioner contends that his trial counsel's performance was deficient because he did not challenge Petitioner's exposure to a 7-year mandatory minimum under 18 U.S.C. § 924 at the same time he was subject to a 10-year mandatory minimum under 21 U.S.C. § 841. Second, Petitioner argues that his trial counsel was ineffective for failing to advise him that he could testify on his own behalf at trial.
A. Failure to Challenge Mandatory Minimum Sentence Under § 924(c)
Petitioner first argues that it was ineffective assistance for his counsel not to argue, pursuant to the language of § 924(c), that he was exempt from its mandatory 7-year sentence because he was subject to a greater mandatory minimum sentence under 21 U.S.C. § 841(a)(1) & (b)(1)(A)(iii).*fn4 (Doc. No. 185 at 3); see also 18 U.S.C. § 924(c)(1)(A). According to Petitioner, "it was clearly unreasonable for counsel not to litigate the ...