The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM AND ORDER OF COURT DENYING DEFENDANT'S MOTION FOR HABEAS CORPUS RELIEF UNDER 28 U.S.C. § 2255 (DOC. NO. 57)
Petitioner, Kenneth McKoy, has filed a pro se motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel, procedural error by failing to consider §3553(a) sentencing factors, and claiming that as a result, this Court imposed an unreasonable sentence. More specifically, petitioner alleges that his counsel was ineffective at trial for failing to investigate laws applicable to determining whether petitioner could be classified as a "Career Offender" and for failing to advise him of the possibility that he could be determined to be a "Career Offender." He also claims that the Court erred in imposing a sentence of 188 months instead of 60 to 120 months.
On September 26, 2006, petitioner was charged in a seven-count Indictment with various violations of federal law including, at Count Two, "knowingly, intentionally and unlawfully possessing with intent to distribute less than 100 grams of a mixture and substance containing a detectable amount of heroin, a Schedule I controlled substance" in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2 See criminal docket no. 06-332, doc. nos. 19-20.
Petitioner entered into a plea agreement with the Government whereby he agreed to plead guilty to Count Two of the Indictment and waive his right to appeal absent certain circumstances, and the Government agreed to: (1) withdraw all remaining counts and (2) move to have the United States Sentencing Guideline (USSG) offense level reduced by 3 for acceptance of responsibility. On March 23, 2007 petitioner entered a plea of guilty as to Count Two and was ultimately sentenced to a 188-month term of imprisonment which was the lowest amount of time under the guideline range.
Before accepting petitioner's guilty plea on March 23, 2007, this Court conducted a plea colloquy. During this colloquy, after petitioner was sworn, petitioner confirmed the following: he had an opportunity to talk to his attorney before the plea hearing; he was 23 years old with a tenth-grade education; he could speak and understand English; he had ingested no alcohol, drugs or medication within the 48 hours preceding the hearing; he was not under the care of a physician or psychiatrist; and, he had not currently been hospitalized or treated for drug abuse.
In addition to asking petitioner these questions, petitioner affirmed for this Court that: he read the entire Indictment with his attorney; he understood the charges that were set forth in the document; and that he had no questions about the crimes charged against him in the Indictment.
Next, this Court detailed all of the trial rights petitioner would forego if he chose to plead guilty to one or more of the charges in the Indictment. The Court also detailed for petitioner what the Government would be required to prove during a trial, if the petitioner opted to go to trial.
Next, this Court informed petitioner that the maximum sentence that could be imposed "under the laws for the commission of these crimes, you and the government have agreed, and as set forth in the plea agreement, is a term of imprisonment of not more than 30 years, a fine of two million dollars, a term of supervised release of six years, and a special assessment of $100." Doc no 54, pp.8-9. Petitioner stated that he understood this was the potential sentence that this Court was authorized to impose. The Court further explained to petitioner that it could not determine what the actual sentence would be imposed until it reviewed the presentence report and any challenge that petitioner or the Government might raise to the presentence report. Id., pp. 9-10.
At this point in the proceedings, the Government stated its position and indicated, ". . . the defendant is a career offender. Therefore, the offense level is, after acceptance of responsibility, Level 31, criminal history category of 6. The guideline range is 188 to 235. And in fact, Your Honor, the plea agreement sets forth that, as the parties agree." This Court then asked petitioner's attorney if the parties had agreed, and Petitioner's counsel responded by stating, "We've agreed that that is the range. That is not, of course, what the sentence is that we expect to be imposed."
Petitioner signed the plea agreement and confirmed for the Court that he knew and understood the content of the agreement. The Court then asked and received answers to the following questions:
THE COURT: . . . Sir, have you read and reviewed the agreement with your counsel?
THE COURT: DO you fully understand all the terms of the agreement?
THE COURT: Do you understand, I am not bound by any recommendation of sentence your attorney and/or the government may have suggested or agreed to, nor by the government's agreement not to oppose your attorney's requested sentence, if any, and that the Court could sentence you up to the maximum sentence permitted by the statute?
THE COURT: Do you understand, if I decline to impose any sentence recommended by the prosecution and/or your attorney, and impose a more severe sentence, you will not be entitled to withdraw your guilty plea for that reason?
Additionally, the Government's attorney was asked to summarize the contents of the plea agreement for the petitioner and the Court. The Government's attorney summarized the agreement as follows nothing Petitioner was agreeing to give up certain appeal rights, including his right to file a § 2255 Petition. Id., pp. 20-21. After hearing the summary, this Court reiterated the key collateral review and appellate rights petitioner would forego by entering a plea of guilty:
THE COURT: Counsel, is that an accurate summary of the plea agreement?
MR. GREENFIELD: It is, as embodied in the written form dated March 5th, 2007, Your Honor.
THE COURT: Do you agree, sir?
THE COURT: Sir, do you understand that by the plea agreement, you're giving up your right to appeal, except as you have specifically reserved that right for the limited purpose of appealing this Court's order denying your motion to suppress, and that you are giving up any right you may have to file a motion to vacate sentence on any other ground under Title 28, United States Code, Section 2255 for habeas corpus relieve, and that you are also giving up other valuable rights to obtain collateral review of your sentence.
At the end of the plea hearing, petitioner pled guilty to Count Two of the Indictment, the Court accepted the guilty plea and set a date for the sentencing hearing.
After receiving the presentence investigation report, the Court received the Government's sentencing memorandum which explained that petitioner was a "Career Offender" under USSG 4B1.1 because he had been arrested on separate dates with respect to two prior convictions for felony drug offenses. The Government noted that although the arrests were close in date, they nevertheless constituted separate offenses. The Government also noted that petitioner had a lengthy criminal history dating to back to age 14, and explained that even without being considered a "Career Offender," his criminal history score was a V. The Government concluded that given petitioner's criminal history and his score, his categorization as a "Career Offender" did not overstate his likelihood to offend again upon release. See doc. no.44.
In petitioner's Statement in Mitigation of Sentence, counsel for petitioner stated: [petitioner] has no objection to the basic factual statements of the Presentence Investigation Report. However, based on a combination of factors, including his youth, [petitioner] submits that his Career Criminal Classification and its penalty of 188 to 235 months, though technically correct, over-represents his criminal history, in the extreme. Applying the standards of 18 U.S.C. 3553, the advisory nature of the [USSG] since Booker, and even the pre-Booker downward departure case law, as well as present relevant case law, [petitioner] urges this Court to reasonably exercise its discretion and impose a sentence less than the 188 to 235 months Guideline sentence . . . and impose one more in accord with the Guideline sentence for Non Career Criminal defendants perpetrating the crimes involved here.
On August 7, 2007, this Court held a sentencing hearing and indicated that it reviewed the petitioner's Statement of Mitigation (doc. no. 45) along with all other relevant documents. See doc no. 55. During this hearing, the Court specifically requested that petitioner's counsel discuss the Section 3553 factors to assist the court in reaching a just sentence. Id. In addition to making an eloquent argument requesting mitigation of petitioner's sentence, petitioner's counsel presented petitioner's father who requesting leniency on behalf of petitioner. Id. After hearing all oral argument on the ...