The opinion of the court was delivered by: Conti, District Judge.
MEMORANDUM OPINION AND ORDER
Pending before the court is a motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 (Docket No. 321 at Criminal No. 03-71) filed by petitioner Omar Shaheed ("petitioner"). Upon consideration of petitioner's motion, the government's brief in opposition (Docket No. 329), the evidence and proffers of evidence presented at two evidentiary hearings, and the proposed findings of fact and conclusions of law submitted by each party, the court will deny petitioner's motion for the reasons set forth herein.
On February 18, 2003, a grand jury indicted seven individuals on four counts of federal narcotics offenses. Those individuals included Tennille Chaffin, Stephen A. Atkins, Tameka Nicole Chaffin, Cye Roy Clanagan, Reginald Earl Kenny, Courtney J. Washington, and petitioner. All seven individuals were alleged to have been involved in a heroin distribution conspiracy which used as its alleged legitimate front the record company No Slippin' Records.
Petitioner was charged with one count of conspiracy to distribute and possess with intent to distribute 1 kilogram or more of heroin from November 20, 2002 until January 26, 2003, in violation of 21 U.S.C. § 846. (Docket No. 1.) Petitioner had three prior drug convictions and, at the time of his arrest, was on parole for a state drug conviction. (Docket No. 185.)
Before the trial began, petitioner's attorney, Mark Rubenstein ("Mr. Rubenstein"), and Assistant U.S. Attorney Troy Rivetti ("Mr. Rivetti") engaged in preliminary discussions about a possible plea bargain. (Evid. Hr'g Tr. 3-4, 24-25, Oct. 9, 2009.) The government set a deadline of January 16, 2004, after which a plea bargain would no longer be accepted. (Id. at 10.) Petitioner informed Mr. Rubenstein, however, that he was not interested in pursuing a deal, and discussions ceased. (Id. at 5-6.) No plea bargain was reached before the government's deadline, and the case proceeded to trial. (Id. at 21-22.)
The government intended to prove petitioner's references to "scratched CDs" during recorded phone conversations were actually code words for bad heroin. (Id. at 9.) In response, petitioner and Mr. Rubenstein planned to assert an innocent association defense. (Id. at 8.) Defense counsel would contend petitioner was a legitimate employee of No Slippin' Records, that he sold CDs directly to customers, and that petitioner had in fact been referring to CDs, and not heroin, during the conversations in question. (Id. at 9.)
This court ruled the government was permitted to introduce petitioner's 1994 prior drug conviction to show Shaheed's knowledge of drugs and intent and to rebut the defense of innocent association. The court held the government could state that petitioner was previously convicted of possession with intent to deliver a controlled substance and state the nature of the drug and amount of grams. The government, however, was required to state that the prior conviction did not involve conspiracy. United States v. Shaheed, 183 F.3d. App'x 168, 172 (3d Cir. 2006).
On February 27, 2004, the jury convicted Shaheed of conspiracy to distribute and possess with intent to distribute less than 100 grams of heroin, even though he was charged with conspiracy to distribute and possess with intent to distribute 1 kilogram or more. (Docket No. 206.)
On June 17, 2004, this court held a sentencing hearing, at which it noted, that because of Shaheed's prior conviction, the maximum term of imprisonment for the instant offense was not more than 30 years. 21 U.S.C. § 841(b)(1)(C). Under the applicable United States Sentencing Guidelines ("Sentencing Guidelines"), a statutory maximum penalty exceeding 25 years resulted in a base offense level of 34. U.S.S.G. § 4B1.1(b). Petitioner's offense level of 34 and criminal history category of VI yielded a sentencing guideline range for imprisonment of 262 to 327 months. The court sentenced petitioner to 262 months imprisonment. (Docket Nos. 257, 258.) Had petitioner been convicted of the drug amount with which he was charged, however, he would have received a mandatory life sentence. (Evid. Hr'g Tr. 4, 14, 27, Oct. 9, 2009.)
On June 28, 2004, petitioner filed a Notice of Appeal. (Docket No. 259.) On May 31, 2006, petitioner's conviction was affirmed by the Court of Appeals for the Third Circuit. United States v. Shaheed, 183 F. App'x 168, 169-70 (3d Cir. 2006). No petition for a writ of certiorari was filed. (Pet'r's Facts ¶ 37.) On August 17, 2006, petitioner was resentenced to 237 months imprisonment because he received credit for time spent in the custody of Pennsylvania authorities. (Docket Nos. 318, 319.)
On August 24, 2007, petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Docket No. 321.) Petitioner alleged that his defense attorney at trial, Mr. Rubenstein, was ineffective, and raised the following claims: (1) "Whether trial counsel was ineffective in employing the defense of innocent association which then allowed the prosecutor to introduce Defendant's prior conviction involving trafficking in controlled substances"; (2) "Whether trial counsel was ineffective in failing to advise Defendant that said prior conviction would be introduced into evidence at trial if the 'innocent association' defense was pursued"; (3) "Whether trial counsel was ineffective in not objecting to the District Court's use of the 21 U.S.C. § 851 Prior Conviction Notice that specified 21 U.S.C. § 841(a)(1) and (b)(1)(A)-not 21 U.S.C. § 841(a)(1) and (b)(1)(c), which were the penalty provisions of which the jury ultimately found Defendant guilty-which resulted in the erroneous calculation of the Offense Level and standard-range sentence of the sentencing guidelines"; and 4) "Whether trial counsel was ineffective for failing to preserve/litigate the claim that Defendant was entitled to a 23-month reduction of his August 18, 2006 237-month sentence of imprisonment because the Board of Prisons was not giving Defendant credit for the 23-months which he spent incarcerated on state detainer." (Docket No. 321.) Petitioner conceded that the third and fourth arguments were resolved and "are no longer at issue...." (Docket No. 356, at 27 ¶ 3).
On February 25, 2009 and October 9, 2009, this court held evidentiary hearings on the remaining arguments in petitioner's motion (Docket Nos. 336, 354), which related to the admission of the prior conviction under Rule 404(b) of the Federal Rules of Evidence ("Rule 404(b)"). A hearing was necessary under 28 U.S.C. § 2255, because the record failed to establish conclusively that petitioner is not entitled to relief. United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005) ("The district court is required to hold an evidentiary hearing unless the motion and files and records of the case show conclusively that movant is not entitled to relief.") (internal quotations omitted).
Petitioner (Docket No. 355) and government (Docket No. 361) filed proposed findings of fact and conclusions of law respectively on November 11, 2009, and February 19, 2010.
Under 28 U.S.C. § 2255(a), a federal prisoner in custody may move the court that imposed the sentence to vacate, set aside or correct the sentence upon 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." ...