The opinion of the court was delivered by: (Judge Rambo)
Before the court is a motion pursuant to 28 U.S.C. § 2255 filed by Kemyah R. Washington. The motion has been briefed and a hearing on the motion was held on December 15, 2010. The matter is now ripe for disposition.
Defendant Kemyah R. Washington was charged in a criminal information with possession with intent to distribute and distribution of cocaine base in an unspecified amount. The information outlined events that occurred on or about October 19, 2006, to August 24, 2007. Pursuant to a plea agreement, Defendant plead guilty to the information.
The factual basis of the plea involved an episode that transpired on October 19, 2006, at the residence of Washington's grandmother, located at 2413 N. Sixth Street, Harrisburg, Pennsylvania. In addition, law enforcement engaged Defendant in an undercover buy of crack cocaine on August 24, 2007. It is the first episode that is the basis for Washington's current motion.
Washington claims the entry and search of 2413 N. Sixth Street was illegal. He therefore alleges his counsel was incompetent for failing to file a motion to suppress the evidence seized from that search.
A. Ineffective Assistance of Counsel Standard
To prevail on a claim of ineffective assistance of counsel, a petitioner must establish that (1) the performance of trial counsel fell below an objective standard of reasonableness, and (2) the performance of counsel unfairly prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 691 (1984). "Both Strickland prongs must be satisfied." George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001) (citing United States v. Nino, 878 F.2d 101, 104 (3d Cir. 1989)).
The first Strickland prong requires a defendant to "establish . . . that counsel's performance was deficient." Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001.) Proving a deficiency in conduct "requires showing that counsel was not functioning as 'counsel' guaranteed by the Sixth Amendment." Id. (quoting Strickland, 466 U.S. at 687) (internal quotations omitted). "In assessing counsel's performance, 'every effort [must] 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.' " Id. "That is to say, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (quoting Strickland, 466 U.S. at 689)). It is well settled that the benchmark for judging any claim of ineffectiveness of counsel is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.
The second prong of Strickland requires a defendant to show that counsel's performance unfairly prejudiced the defendant, meaning that counsel's errors were so serious as to deprive the defendant of a trial whose result is reliable. Id. It is not enough to show that the error had some conceivable effect on the outcome of the proceeding, for virtually every act or omission would meet such a test. Id. Rather, the defendant must show there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Id. at 694. A reasonable probability is sufficient to undermine confidence in the outcome of the trial. Id. Effectiveness of counsel applies to advice given by counsel during guilty plea discussions. Hill v. Lockhart, 474 U.S. 52, 58 (1985); United States v. Booth, 432 F.3d 542, 547 (3d Cir. 2005). With the above precepts in mind, Washington's claims will be addressed.
Assistant Federal Public Defender Thomas Thornton, who represented Washington at the trial level, testified at the § 2255 hearing on December 15, 2010. Thorton stated that he knew at the outset that Washington would be sentenced as a career offender. His objective was to assure Washington got the least amount of prison time ...