The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is a motion by Malverse D. Giles to vacate, set aside, or correct a judgment pursuant to 28 U.S.C. § 2255 and a brief in support thereof. The Government has responded. No reply brief has been filed. The matter is ripe for disposition.
The background leading to the arrest of Giles is adequately set forth in the Government's brief in response to the § 2255 motion and will not be repeated herein. Giles was initially charged in a two-count indictment with possession with intent to distribute cocaine and 50 grams and more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and criminal conspiracy of the same in violation of 21 U.S.C. § 846. Subsequently, a superseding, five-count indictment was returned against Giles charging the previous two offenses and three counts of possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c). Pursuant to a plea agreement, Giles pled guilty to Count I of the superseding indictment -- possession with intent to distribute 50 grams and more of cocaine base and cocaine.
Giles criminal history category was VI because Giles was classified as a career offender. The presentence report determined that Giles was responsible for the distribution of 4.5 kilograms of cocaine base and over 12 kilograms of powder cocaine. His base offense level was 38. A two level increase for possession of a firearm in connection with drug trafficking gave him an adjusted offense level of 40.
Ultimately, a stipulation of the parties, a reduction in offense level, and a 5K1.1 motion, reduced Giles' offense level to 35 with a criminal history of V. Giles was sentenced at the low end of the guideline to 235 months of incarceration, a $1,000.00 fine, community restitution of $1,000.00, a special assessment of $100.00 and a five year term of supervised release. Giles appealed the conviction to the Third Circuit Court of Appeals which affirmed the conviction and sentence on December 14, 2009. (Doc. 224-3).
In the motion to vacate, Giles alleges his counsel was incompetent by (1) failing to object to the drug weight determination and stipulating to a higher amount without consulting him; and (2) failing to advised him of all possible plea options. Giles also seeks the benefit of the Fair Sentencing Act of 2010 which reduced the crack cocaine/cocaine ratio.*fn1
A. Ineffective Assistance of Counsel
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).
Giles claims that trial counsel was ineffective for failing to object to the drug weight determination set forth in the presentence report and then stipulating to the drug amount without his consent.
Counsel did object to the drug weight determination. In a letter to the probation officer dated September 16, 2008, counsel objected to those paragraphs of the presentence report to which there were amounts stated. (See Ex. A attached hereto at ¶¶ 11, 13, 16, 17, 19.) As a result of the various objections, counsel for the Government and defense counsel met to work out the objections. At a hearing held on October 22, 2008, the entire stipulation was discussed with the court and with Giles present in the courtroom. There were occasions when the court asked Giles if he was in agreement with the stipulation and Giles consented. (See Doc. 245, Transcript of Pre-Sentence Hearing, at pp. 4, 6, and 7.)
The agreement or stipulation was that Giles would agree that he was responsible for 4.5 kilograms of cocaine base and more and the Government would agree that the firearm enhancement would not apply. The adjusted offense level would be 38.
There was a lapse of about two and one-half weeks between the pre-sentencing hearing when the stipulation was reached and the date of sentencing. Defendant filed no objections to the stipulation and made no objections at the time of sentencing
Giles claim that trial counsel was ineffective for failing to object to the drug weight determination is without foundation. No agreement was ...