The opinion of the court was delivered by: Chief Judge Kane
Before this Court is Movant Robert Sidney Lee's motion to vacate, set aside, or correct sentence filed pursuant to 28 U.S.C. § 2255(Doc. No. 134) and Lee's motion for credit time served (Doc. Nos. 119, 130). An evidentiary hearing on the § 2255 motion was held April 20, 2010. For the reasons that follow, the motions will be denied.
On August 28, 2005, Mifflin County Police were called to investigate a domestic disturbance. Denise Sherlock had called police because Movant Robert Sidney Lee was allegedly assaulting her, stealing her prescription medication, and threatening to set fire to her automobile. The police arrested Lee at the scene, finding .33 grams of crack cocaine and a drug "owe sheet" on his person at the time of arrest.
On August 6, 2006, Lee was federally indicted, along with co-defendant Cecil Swartz, on charges of distribution of heroin resulting in death, and distribution and possession with intent to distribute heroin, cocaine, and more than fifty grams of crack cocaine. (Doc. No. 1.) Attorney Dennis Boyle represented Lee at all except the preliminary stages of the proceedings. (Doc. No. 48.) A superceding indictment was filed on February 28, 2007 (Doc. No. 52), followed by a one- count information on August 20, 2007. (Doc. No. 80.) The felony information, to which Lee pled guilty on September 24, 2007, charged him only with distribution and possession with intent to distribute an undisclosed amount of heroin. (Id. 80.) The plea agreement stated that the maximum penalty was twenty years. (Doc. No. 82 at 2, 3, 8.) The plea agreement also provided that the Government would move for a downward departure at sentencing on the basis of acceptance of responsibility. (Id. at 6.) On March 12, 2008, Lee was sentenced to 96 months imprisonment with three years of supervised release. (Doc. No. 104.)
Lee appealed the sentence, arguing that his guilty plea was not knowing, intelligent, and voluntary, that this Court abused its discretion in imposing a sentence of 96 months, and that counsel was ineffective. (Doc. No. 131-2 at 4.) The Third Circuit Court of Appeals affirmed the sentence but did not rule on the ineffective assistance of counsel claim. (Doc. No. 131-2.)
In his § 2255 motion, Lee argues that his counsel was ineffective in several respects.*fn1 Specifically, Lee argues that Boyle improperly advised him to plead guilty to the information with an undisclosed amount of drugs and then unreasonably advised him to stipulate at sentencing to an amount of drugs much larger than he felt he was responsible for. Lee also submits that Boyle was ineffective for failing to argue that his criminal history was overstated, failing to help him write an acceptance of responsibility letter, and failing to argue for certain sentence adjustments to account for time served in a related state sentence. Lastly, Lee argues that Boyle was more concerned with his relationship with Assistant United States Attorney Joseph Terz than zealously advocating for his client.
To obtain relief under § 2255 for an ineffective assistance of counsel claim, a defendant must demonstrate that 1) the attorney's conduct was deficient and 2) that he was objectively prejudiced by the deficiency. United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To be deficient, defense counsel's performance must have fallen "below an objective standard of reasonableness." 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. In cases where the ineffective assistance of counsel claim involves a guilty plea, 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." Weeks v. Snyder, 219 F.3d 245, 257 (3d Cir. 2000) (internal citations omitted). To demonstrate prejudice in more general contexts, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694.
A. Advice to Plead Guilty
In his § 2255 motion, Lee first argues that counsel was ineffective for advising him to sign a guilty plea to an undisclosed amount of drugs and for suggesting that Lee would likely receive a sentencing guideline range of forty-one to fifty-one months. As a corollary to this argument, Lee asserts that his plea was not knowing and voluntary because Boyle improperly involved his mother, who helped convince him to plead guilty.
As the Government points out, it is clear that an incorrect sentencing prediction prior to a plea agreement does not amount to ineffective assistance of counsel where an adequate plea hearing was conducted to inform the defendant of the potential maximum sentence. Shedrick, 493 F.3d at 299 ("[W]e have long held that an erroneous sentencing prediction by counsel is not ineffective assistance of counsel."). Yet, Lee persists in his argument that counsel was ineffective, emphasizing that Attorney Boyle led him to believe that pleading guilty to an undisclosed quantity of drugs meant that the drug quantity would not be an issue at sentencing. (Doc. No. 135 at 1-2; Doc. No. 154 at 2.) Lee alleges that he would not have pled guilty had he known that he would have been sentenced for possession of more than twenty to forty grams of heroin. (Doc. No. 135 at 2.)
This assertion is plainly contradicted by the record. At the change of plea hearing, the Court ensured that Lee adequately understood that the only thing certain about his sentence was that it would not be greater than the maximum penalty of twenty years. (Doc. No. 108 at 8-11, 13.) The Court informed Lee that the sentence was uncertain at the time of the plea agreement because it would depend on a number of undetermined factors, including "the amount of drugs" ascribed to him. (Id. at 2.) The Court then asked Boyle what he had advised Lee the guideline range might be. (Id.) Boyle responded that the range was likely to be "anywhere between five and twelve years." (Id. at 12.) The Court then emphasized that despite the prediction, "nobody knows what [Lee's] sentence is going to be" and that Lee would not be permitted to change his mind or to withdraw the guilty plea simply because he was unhappy with the outcome of his sentence. (Id. at 13-14.) Lee confirmed that he voluntarily accepted those terms. (Id.)
Lee further demonstrated his knowledge of, understanding of, and willingness to join the plea agreement when he asked specific questions about the repercussions of the plea agreement. Lee asked whether there were stipulations in the agreement that no bodily injury enhancement would apply and that the Government would move for a 5K1 departure. (Id. at 14-16.) After being told there was no 5K1 agreement but that a bodily injury stipulation had been made apart from the plea agreement, Lee re-affirmed that he still desired to plead guilty. (Id. at 16.) Looking at the thorough plea colloquy, it is clear that Lee understood that the drug quantity remained in dispute and would be a factor at sentencing.
With respect to his contention that his mother's persuasive role was problematic, Lee does not allege that his mother improperly coerced him into pleading guilty, or that Boyle betrayed attorney-client privilege in informing her about the charges, thus her persuasive role does not render the agreement involuntary. Lee accepted the terms of the plea agreement willingly and voluntarily.
Moreover, Lee challenged the guilty plea on direct appeal and lost. Without much discussion, the Third Circuit Court of Appeals denied Lee's claim that he did not enter the guilty plea knowingly and voluntarily, finding that "there [was] no arguable merit" to the claim. (Doc. No. 131-2 at 4.)
For the foregoing reasons, the Court finds that Boyle's assistance to Lee at the guilty plea proceeding did not fall below the standard reasonably expected of defense counsel. There was no ineffective assistance of counsel in this respect.
B. Failure to Pursue Objections to the Presentence Report or to Have Evidentiary Hearing on Drug Amounts
Lee next claims that Boyle's failure to pursue an objection to the drug quantity at the sentencing hearing amounted to ineffective assistance of counsel. Lee claims that Boyle persuaded him to stipulate to 159 grams of heroin when there was no benefit to making such a concession. Lee argues that Boyle's advice was unreasonable because Lee had nothing to lose in challenging the drug quantity. Lee further argues that Boyle's averment to Lee's mother that ...