The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Petitioner Hassan Thomas's ("Thomas") pro se motion styled "Petition to Impeach Judgment in the Interest of Justice for Extrinsic Fraud and Fraud upon the District Court." (Doc. No. 338.) As previously determined, this petition can only properly be considered as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. No. 376.) The motion is now ripe for disposition. For the reasons that follow, the Court will deny Thomas's motion.
On March 12, 2003, the Government filed a seven-count indictment charging Thomas and several coconspirators with drug related offenses. (Doc. No. 1.) On September 4, 2003, Thomas entered into a plea agreement with the Government, stipulating that he would waive his right to prosecution by indictment and plead guilty to a superseding information charging him with violation of 21 U.S.C. § 841(a)(1) for distribution of cocaine and cocaine base. (Doc. No. 111.) Because no drug quantity would be specified in the superseding information, the maximum term of imprisonment for this offense was 20 years under 21 U.S.C. § 841(b)(1)(C).
On September 09, 2003, Thomas appeared before the Court to enter a plea of guilty pursuant to this plea agreement. After the Court engaged in a thorough plea colloquy with Thomas, the Government proffered a factual basis for the plea. (Transcript, Change of Plea and Motion Hearing, at 24:2-26:9 (hereinafter "Plea Tr.").) Though questioning some of the factual basis, Thomas admitted that he distributed crack cocaine on the dates and times proffered by the Government. (Id. at 27:19-23.)
On May 20, 2004, Thomas appeared before the Court for sentencing. He raised two objections to his presentence investigation report: (1) he was only involved in the sale of powder and not crack cocaine; and (2) he was not responsible for the asserted drug quantity of 500 grams to 1.5 kilograms. (See Transcript, Sentencing Hearing, at 3:8-14 (hereinafter "Sentencing Tr.").) After hearing testimony from witnesses called by both parties, the Court overruled Thomas's first objection and found that he was dealing in crack cocaine for purposes of his guideline calculation. (Id. at 103:1-7.) The Court sustained Thomas's second objection, however, finding that the evidence only showed drug quantity of between 50 and 150 grams of crack cocaine. (Id. at 103:8-15.) After recalculating Thomas's guideline range with these findings, the Court imposed a sentence of 176 months imprisonment. (Id. at 106:11-15.)
Thomas appealed his sentence (Doc. No. 200), and while that appeal was pending, the Supreme Court issued its decision in United States v. Booker, 543 U.S. 220 (2005). Accordingly, in an amended opinion,*fn1 the Third Circuit remanded the case for resentencing so that the Court could apply the sentencing guidelines in an advisory manner. See United States v. Thomas, 173 F. App'x 177, 178 (3d Cir. 2006).
Thomas appeared before the Court for his resentencing hearing on July 17, 2006. At the outset, Thomas's counsel conceded that the Court "accurately determined the applicable guideline range" in his original sentencing hearing. (See Transcript, Resentencing Hearing, at 2:8-12 (hereinafter "Resentencing Tr.").) Thomas's counsel went on to argue extensively for a variance from the guideline range under Booker and 18 U.S.C. § 3553(a) for reasons including his background, upbringing, unwarranted sentencing disparities, and the 100-to-1 crack-to-powder cocaine ratio. Considering those arguments and all the factors under § 3553(a), the Court determined that a variance was not warranted and that the originally imposed sentence of 177 months was appropriate under the circumstances. (Id. at 23:16-24:2.)
Thomas appealed his resentencing, arguing that the sentence imposed was unreasonable. United States v. Thomas, 254 F. App'x 937, 938 (3d Cir. 2007). The Third Circuit rejected this argument and affirmed the Court's 177 month sentence.*fn2 Id. Thomas then filed the present motion.
Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence on the grounds that: the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .
28 U.S.C. § 2255. In evaluating a § 2255 motion, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005) (quoting Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). Read liberally, Thomas's pro se motion and brief in support raise issues regarding the ineffective assistance of his counsel at his resentencing hearing and failing to make further argument for a sentencing reduction based on acceptance of responsibility. (Doc. Nos. 338-39.) In his response to the Government's brief, Thomas also attempts to raise new issues not raised in his initial petition, including challenges to the Court's determinations at his sentencing and the validity of his guilty plea. (Doc. No. 383.) The Court will address these contentions in turn.
A. Ineffective Assistance of Counsel
To assess whether Thomas's counsel was constitutionally ineffective, the Court applies the standard set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, "a criminal defendant may demonstrate that his representation was constitutionally inadequate by proving: (1) that his attorney's performance was deficient, i.e., unreasonable under prevailing professional standards; and (2) that he was prejudiced by the attorney's performance." United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005). The first prong requires that the defendant identify counsel's challenged acts or omissions and show that counsel's representation fell below an objective standard of reasonableness. See United States v. Lilly, 536 F.3d 190, 196 (3d Cir. 2008) (citing Strickland, 466 U.S. at 688). Judicial scrutiny is highly deferential under the first prong, and courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Booth, 432 F.3d at 546 (quoting Strickland, 466 U.S. at 688-89)). To establish prejudice for the second prong, the defendant must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. When evaluating a claim of ineffectiveness under Strickland, the Court may consider the prejudice prong before examining the performance of counsel prong "because this course of action is less burdensome to defense counsel." Lilly, 536 F.3d at 196 (quoting Booth, 432 F.3d at 546)).
1. Conceding Original Guideline Calculations
Thomas argues throughout the motion that his counsel was ineffective in presenting Thomas's defense to the Court at the resentencing hearing. Thomas specifically finds fault with his counsel's initial statement, conceding that: "at the initial sentencing hearing, the Court accurately determined the applicable guideline range. Your Honor determined that the offense level was 32 and the criminal history category was four, and there is no dispute about that." (Resentencing Tr. at 2: 8-12.) Thomas decries his counsel ...