The opinion of the court was delivered by: Bartle, C.J.
Before the court is the motion of defendant Jose Del Valle to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
Del Valle was found guilty by a jury on April 20, 2007 of: (1) conspiracy to possess with intent to distribute 5 kilograms or more, that is, approximately 24 kilograms, of cocaine, in violation of 18 U.S.C. § 846 (Count One); and (2) possession with intent to distribute 5 kilograms or more, that is, approximately 24 kilograms, of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Two). He was sentenced on September 7, 2007 to a term of life imprisonment and a term of supervised release of ten years, the mandatory minimum sentence. The Court of Appeals for the Third Circuit affirmed the judgment and sentence on April 28, 2009. See U.S. v. Del Valle, 323 Fed. App'x 125 (3d Cir. 2009). It issued its mandate on May 21, 2009.
Del Valle now alleges in his § 2255 petition that he was deprived of his Sixth Amendment right to effective assistance of counsel through a long list of errors made by his retained counsel at the pre-trial, trial, and sentencing phases of his case. On November 23, 2010, the court held an evidentiary hearing limited to the issue of whether Del Valle's counsel misadvised him to stand trial rather than plead guilty.
The underlying facts, in the light most favorable to the Government, are as follows. In October, 2006, DEA Task Force agents in northern New Jersey acted on a tip from a confidential informant and began surveilling 120A East Edsall Avenue, Palisades Park, New Jersey. The agents observed movements of the residence's occupants in different vehicles that suggested a pattern of drug trafficking.
On October 18, 2006, the agents followed a red Nissan pick-up truck with Illinois license plates from that location to a mall parking lot in front of a Lowe's store on Roosevelt Boulevard in Northeast Philadelphia. The driver of the Nissan was later identified to be Luis Santiago-Gaston. Agents observed Santiago-Gaston exit his vehicle, survey the parking lot, place his jacket on the rear of the driver's seat, and then enter Lowe's. Shortly thereafter, the agents saw Del Valle pull up next to the red Nissan in a black Chevy Tahoe truck. Del Valle exited the Chevy and entered the Nissan on the driver's side, while his passenger in the Chevy moved to the driver's seat of the truck. The two vehicles then left the mall parking lot together and headed to a fenced lot at West Sedgley Avenue and North 3rd Streets, approximately thirty minutes away. The agents then lost sight of the vehicles but believed that they had witnessed a narcotics drop.
Fifteen minutes later, the agents saw the vehicles pull out of the fenced lot. They returned to the mall parking lot where Del Valle exited the Nissan and got into the Chevy. The Chevy left the parking lot, and shortly thereafter Santiago-Gaston emerged from Lowe's without any packages, entered the Nissan, and returned to Palisades Park, New Jersey. Again, the agents believed that they had seen a narcotics or narcotics money transfer and increased surveillance of 120A East Edsall Avenue.
During their surveillance of 120 East Edsall Avenue on October 29, 2006, the agents saw Jose Cervantes drive away from the residence in the red Nissan, whose Illinois license plates had now been exchanged for New York license plates. Cervantes drove to the same mall parking lot in Northeast Philadelphia, this time parking in front of a WalMart. Cervantes left the Nissan and walked into the WalMart. Shortly thereafter, agents observed Del Valle drive up in the same Chevy Tahoe truck, exit his vehicle, and enter the driver's side of the Nissan. This time, his passenger Herminio Galindez exited the Chevy with a large black duffle bag and climbed into the passenger side of the Nissan. The two drove out of the mall parking lot into a nearby residential area.
The agents followed Del Valle in the Nissan and observed him driving in an unusual manner. The agents believed that Del Valle was engaging in classic counter-surveillance maneuvers. After approximately twenty minutes of driving throughout the residential neighborhood, Del Valle pulled over. Galindez exited the vehicle with the black duffle bag and reentered the rear passenger area where he began moving about. Based on their training and experience, the agents believed that Galindez was storing narcotics in a secret compartment in the rear of the car. Del Valle then began driving in the direction of the mall parking lot.
During his return trip to the mall parking lot, Del Valle made an abrupt turn in front of another vehicle. The agents became concerned that Del Valle had realized that they were following him. They pulled the Nissan over on Bluegrass Road. As they approached the vehicle, they observed Del Valle in the passenger seat with his hands already raised. They also observed Galindez in the rear of the vehicle, crouching over the open black duffel bag. The agents recognized the contents of the duffel bag as kilograms of cocaine.
The agents then removed Del Valle and Galindez from the vehicle and arrested them. The agents recovered 12 kilograms of cocaine from the open duffel bag and $22,000 in cash from a passenger side rear seat hidden compartment, the contents of which were visible at the time of the stop. They then forced open a hidden compartment under the driver's side rear seat and found an additional 12 kilograms of cocaine.
After being processed and given warnings pursuant to Miranda v. Arizona, 382 U.S. 436 (1966), Del Valle signed a waiver of his Miranda rights. He admitted possession of the narcotics found by the agents in the Nissan and advised them that he had received other large quantities of cocaine from Cervantes on three other occasions. He detailed for the agents the logistics of his meetings with Cervantes, the purchase and sale prices of the cocaine, his alleged customers, and other persons involved in the drug trade.
On November 29, 2006, a federal grand jury returned a two-count indictment against Del Valle and Galindez for conspiracy to distribute more than five kilograms of cocaine and possession with the intent to distribute more than five kilograms of cocaine. On January 5, 2007, Del Valle replaced his court-appointed counsel with a privately retained attorney, F. Michael Medway. On January 9, 2007, the government filed a notice pursuant to 18 U.S.C. § 851. This notice alerted Del Valle ...