The opinion of the court was delivered by: Joyner, J.
This case is now before the Court on Defendant/Petitioner's Habeas Corpus Motion Under 28 U.S.C. § 2255 (Doc. No. 701). For the reasons set forth below, Petitioner's Motion will be DENIED.
In February 2001, a jury returned a guilty verdict against Petitioner Anthony Watson on charges of conspiracy to distribute cocaine base ("crack") in violation of 21 U.S.C. § 846, distribution of crack and possession with intent to distribute crack in violation of 21 U.S.C. § 841(a)(1), and distribution of crack and possession with intent to distribute crack within 1,000 feet of a school in violation of 21 U.S.C. § 860. This Court concluded that Petitioner's base offense level was thirty-eight, due to the nature of his crimes. We then increased this by two levels because one of Petitioner's co-conspirators was in possession of a firearm. We further increased the offense level by another three because of Petitioner's supervisory role in the conspiracy and by an additional two because the offenses occurred within 1,000 feet of a school. On June 21, 2001, this Court sentenced Petitioner to life imprisonment, a $200 special assessment, a $2,000 fine, and 10 years of supervised release.
Petitioner then appealed his conviction and sentence to the Third Circuit Court of Appeals on June 22, 2001. In his appeal, Petitioner challenged this Court's calculation of the sentencing guidelines, the admission of certain evidence at trial, and the denial of Petitioner's suppression motion. The Third Circuit found Petitioner's arguments to be meritless and affirmed his conviction and sentence.
Petitioner then petitioned the Supreme Court for a writ of certiorari. On January 24, 2005, the Supreme Court vacated the judgment and remanded the case to the Third Circuit in light of the Court's decision in United States v. Booker, 543 U.S. 220 (2005), which held that sentencing guidelines are only advisory rather than mandatory. Booker, 543 U.S. at 265. Further, the holding was to be retroactive to all cases on appeal. Id. at 268. The Third Circuit then vacated Petitioner's sentence and remanded the case to this Court for re-sentencing in light of Booker. At the re-sentencing, we made identical findings to those at the original sentencing, with the exception of enhancing Petitioner's offenses by two levels rather than three for his supervisory role in the conspiracy in order to recognize Petitioner's lesser role in the conspiracy compared with several of his co-conspirators. However, even with this adjustment, under the sentencing guidelines the maximum sentence was still life imprisonment. However, with the guidelines now only advisory in accordance with Booker, we imposed a sentence of 360 months, eight years of supervised release, and a $2,000 fine.
Following his re-sentencing, Petitioner appealed again to the Third Circuit, arguing that this Court's sentencing violated the ex post facto principle of the due process clause. The Third Circuit again affirmed the ruling of this Court, holding that there was no violation of the ex post facto principle because Petitioner had fair warning of the statutory maximums and there was no enhancement of his punishment.
Petitioner then filed this petition for habeas corpus relief with this Court on January 20, 2010. Petitioner asserts a Sixth Amendment ineffective assistance of counsel claim at trial and on appeal. Specifically, Petitioner asserts that his appellate counsel failed to argue that an ex post facto violation occurred at Petitioner's re-sentencing, his trial counsel failed to seek a multiple conspiracy instruction to the jury, his trial counsel failed to investigate the evidence pertaining to the phone register and pin register that linked Petitioner to the conspiracy, and his trial counsel failed to challenge the sentencing disparity between crack and powder cocaine.
The charges against Petitioner stemmed from a large crack cocaine distribution conspiracy in the late 1990s, of which Petitioner was a part. While not the leader of the conspiracy, Petitioner was found to have held a supervisory role and managed the sale of drugs on two street corners that were under the control of the conspiracy. Included in the evidence that the government introduced to link Petitioner to the conspiracy was the testimony of Agent Tropea, who testified to the communications between various members of the conspiracy including Petitioner. The jury ultimately found that Petitioner was a member of the conspiracy.
28 U.S.C. § 2255 provides an avenue for individuals under federal custody to challenge their sentences. To succeed in such a challenge, the petitioner must demonstrate 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(a). Petitioner's constitutional claim stems from an alleged Sixth Amendment violation. The U.S. Supreme Court has long recognized that the right to counsel under the Sixth Amendment and the Due Process Clauses is crucial to protecting the fundamental constitutional guarantee of a fair trial. See Strickland v. Washington, 466 U.S. 668, 684-85 (1984). In order to establish that counsel's assistance was indeed ineffective, a petitioner must meet both elements of the two-pronged test established in Strickland. First, a petitioner must establish that counsel not only erred, but that counsel's errors were considerable enough to undermine the proceedings to such an extent that the outcome cannot be relied upon as fair and just. Id. at 687. Second, it must also be established that counsel's actions prejudiced the defendant and deprived defendant of a fair and reliable trial. Id. at 687. Furthermore, "not every 'error by counsel, even if professionally unreasonable, ... warrant[s] setting aside the judgment of a criminal proceeding." Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010) (citing, Strickland v. Washington, 466 U.S. 668 (1984)). Petitioner must demonstrate that counsel's error was prejudicial and that there is a reasonable probability that were it not for the error the outcome of the proceeding would have been different. Id. at 197-98.
Petitioner asserts that his Sixth Amendment rights were violated through several instances of deficient performance by his counsel. We will ...