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Davies v. Tennis


June 16, 2010


The opinion of the court was delivered by: Thomas M. Golden, J.


AND NOW, this 16th day of June, 2010 upon an independent and thorough review of the Petitioner's Petition for Writ of Habeas Corpus,*fn1 Respondents' response thereto and the state court record, and after conducting a de novo review*fn2 of Magistrate Judge Carol Sandra Moore Wells' Report and Recommendation and Petitioner's Objections thereto, it is hereby ORDERED that:

1. The Report and Recommendation is ADOPTED and APPROVED;

2. The Petitioner's Objections (Doc. No. 10) are OVERRULED;*fn3

3. The Petition for Writ of Habeas Corpus (Doc. No. 1) is DENIED and DISMISSED;

As to Petitioner's claim that counsel erroneously provided him with an inaccurate estimation of the minimum/maximum sentence he could receive from the trial court, it is well established that counsel's inaccurate sentencing predictions do not constitute ineffective assistance of counsel where an adequate hearing is conducted. United States v. Macon, 91 Fed. Appx. 239, 243 (3d Cir. 2004) (citing United States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003); Masciola v. United States, 469 F.2d 1057, 1059 (3d Cir. 1972)); see Fahlfeder, 32 Fed. Appx. at 622; see also United States v. Lambey, 974 F.2d 1389, 1394-95 (erroneous sentence estimation does not constitute prejudice if the plea colloquy corrects or clarifies the error). Here, the trial court clearly informed Petitioner, prior to his pleading guilty, that the minimum sentence he would face was ten to twenty years of imprisonment, that he was subjecting himself to the Court's discretion and that it was within the court's discretion to run those sentences consecutively. (4/20/07 N.T. at 6-7; 5/3/2005 N.T. at 11-12; Guilty Plea Colloquy ¶¶ 23-23(a).) Moreover, Petitioner acknowledged that he was pleading guilty of his own volition, not in response to coercion or any promise or other inducement. (4/20/07 N.T. at 35-38; 5/3/2005 N.T. at 11; Guilty Plea Colloquy ¶¶ 33-35, 37, 39.) Therefore, taking into account Petitioner's responses to the Court's inquiry, it appears that Petitioner's guilty plea was knowing, intelligent and voluntary.

In similar cases, however, ineffective assistance of counsel may be established by demonstrating "a reasonable probability that: (1) the defendant would have accepted the alleged plea offer, (2) the court would have accepted the plea agreement, and (3) a lesser sentence would have resulted." E.g., United States v. Pungitore, 15 F. Supp. 2d 705, 733 (E.D. Pa. 1998) (citing United States v. Day, 969 F.2d 39, 44-45 (3d Cir. 1992)). Nevertheless, Petitioner fails to provide the Court with any evidence to show that he would have accepted the government's plea offer but-for his counsel's estimation. He did not even assert that he would have accepted a fifteen to thirty year imprisonment sentence during the post-conviction hearing. See (4/20/07 N.T. at 25-41.) Moreover, Petitioner does not highlight anything which would indicate that it is "reasonably probable" that the state would have incarcerated him for less than twenty years had he accepted the plea offer. Furthermore, it is clear from testimony presented at the hearing that Petitioner was aware that entering an open plea could expose him to an inordinate amount of prison time. See (4/20/07 N.T. at 22-23, 32.) Thus, Petitioner is unable to establish that he was prejudiced as a result of his counsel's alleged deficient conduct.

Finally, the Court finds that because Petitioner's counsel's actions did not amount to ineffective assistance of counsel, counsel's failure to discuss Petitioner's displeasure with his representation in open court is of little import.

4. There is no basis for the issuance of a certificate of appealability;*fn4 and,

5. The Clerk of Courts is DIRECTED to CLOSE the within matter for statistical purposes.

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