The opinion of the court was delivered by: David Stewart Cercone United States District Judge
On November 2, 2006, Petitioner, Roderick F. Bailey ("Bailey" or "Petitioner"), withdrew his plea of not guilty and entered a plea of guilty to Counts One, Eight, Twelve and Twenty-Six of the Indictment entered at criminal No. 06-157. At a sentencing hearing that commenced on April 23, 2007, but concluded on May 2, 2007, due to Bailey‟s medical issue, the Court granted a downward departure from the recommended sentencing guideline range of 262 to 327 months, and sentenced Bailey to 180 months at each of Counts One, Eight, Twelve and Twenty-Six to be served concurrently. On January 24, 2008, Bailey filed a pro se Motion to Vacate, Set Aside, or Correct Sentence under Title 28, United States Code § 2255. In his motion, Bailey raises two claims of ineffective assistance of counsel contending that he was denied effective assistance when (1) counsel induced him to enter a plea of guilty based upon an alleged false promise, and (2) when counsel declined to pursue an appeal as Bailey requested after his sentencing hearing. The Government has responded and the matter is before the Court.
II. STATEMENT OF THE CASE
On May 2, 2006, a federal grand jury sitting in the Western District of Pennsylvania handed down a thirty-five (35) count Indictment charging twenty-four (24) defendants, including Bailey, with various violations of federal drug laws. Bailey was charged at Count One with conspiracy to distribute and possess with intent to distribute five (5) kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and at Counts Eight, Twelve and Twenty-Six with possession with intent to distribute less than 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Attorney Derwin Rushing was appointed to represent Bailey.
Subsequent to the entry of his general plea of guilty to the above counts, a motion to withdraw guilty plea was filed on Bailey‟s behalf. In the motion, Bailey contended that his plea was based upon the erroneous information that he would be sentenced to the statutory mandatory of ten (10) years, however, because of his prior record, Bailey was classified as a "career criminal" in the Presentence Investigation Report with a corresponding guideline sentencing range of 262 to 327 months. Attorney Rushing also filed a motion to withdraw as counsel.
On February 2, 2007, Rushing‟s motion to withdraw was granted and Attorney James J. Brink was appointed to represent Bailey. Bailey then withdrew his motion to withdraw his guilty plea on February 20, 2007. At a sentencing hearing held on May 2, 2007, Bailey was sentenced to 180 months imprisonment at Count One and 180 months at each of Counts Eight, Twelve and Twenty-Six to be served concurrently.
Bailey brings his pro se motion pursuant to § 2255 which permits a "prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . [to] move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). An evidentiary hearing is not required if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). In his motion, Bailey raises two claims of ineffective assistance of counsel contending that he was denied effective assistance when Attorney Rushing induced him to enter a plea of guilty based upon an alleged false promise, and when Attorney Brink allegedly declined to pursue an appeal of the sentence as Bailey requested.
The two-part test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Dooley v. Petsock, 816 F.2d 885, 889 (3d Cir. 1987). Therefore, in order to prevail, Bailey must show that his: "(1) counsel‟s representation fell below an objective standard of "reasonableness under prevailing professional norms;‟ and (2) [he] suffered prejudice as a result - that is, there is a reasonable probability that, but for counsel‟s deficient performance, the result of the proceeding would have been different." Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (citing Strickland v. Washington, 466 U.S. at 694). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694.
With regard the reasonableness of an attorney‟s performance, the Strickland court stated:
Judicial scrutiny of counsel‟s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel‟s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel‟s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‟s challenged conduct, and to evaluate the conduct from counsel‟s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel‟s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."
Id. at 689. Further, the Court of Appeals for the Third Circuit explained: "[i]t is  only the rare claim of ineffective assistance of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel‟s performance." United States v. Kauffman, 109 F.3d 186, 190 (3d ...