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United States v. McGurn

September 30, 2010

UNITED STATES OF AMERICA
v.
LAMAR MCGURN



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM

I. Background

On March 22, 2006, a grand jury in the Eastern District of Pennsylvania returned a 21-count superseding indictment naming Defendant Lamar McGurn ("Mcgurn") and twelve others. McGurn was charged with one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count 20). On March 14, 2007, McGurn and two other Defendants proceeded to trial. At the conclusion of a ten-day jury trial, McGurn was convicted.

On July 3, 2007, the District Court sentenced McGurn to 360 months' imprisonment, eight years' supervised release, a $5,000 fine, and a $100 special assessment. McGurn was sentenced as a career offender based upon his prior convictions for murder and possession with intent to distribute cocaine. McGurn appealed his conviction and sentence.

On February 3, 2009, the Court of Appeals affirmed the judgment of the District Court. On April 6, 2009, the United States Supreme Court denied certiorari. On April 8, 2010, McGurn filed a habeas corpus Motion pursuant to 28 U.S.C. § 2255.*fn1 On May 5, 2010, McGurn filed an Amended Petition pursuant to 28 U.S.C. §2255.

McGurn's Petition for post-conviction relief asserts ineffectiveness of counsel with several sub-arguments as follows:

1. Failing to oppose the government's changing of the drug quantity specified in the indictment.

2. Failing to move to dismiss on grounds of prosecutorial vindictiveness.

3. Failing to challenge prior convictions as qualifying predicates for sentencing enhancements.

4. Counsel misadvising Defendant about a plea offer.

II. Legal Standard

The leading case for this claim is Strickland v. Washington, 466 U.S. 668, 687 (1984) holding:

First, the defendant must show that counsel's performance was deficient.

This requires showing that counsel made errors so serious that counsel was not function as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or ...


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