The opinion of the court was delivered by: Eduardo C. Robreno, J.
Petitioner seeks habeas relief pursuant to 28 U.S.C. § 2255. Petitioner asserts three grounds for relief: (1) ineffective assistance of counsel; (2) erroneous mandatory application of the sentencing guidelines; and (3) actual innocence of conviction pursuant to 21 U.S.C. §§ 846 and 841. As explained below, Petitioner's arguments are either meritless or procedurally barred. Consequently, the Court will deny Petitioner's request for relief.
On April 25, 2006, a jury convicted Petitioner Haskell Peak ("Petitioner") of one count of conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846; five counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1); two counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1); seven counts of distribution of cocaine or cocaine base within 1000 feet of a school, in violation of 21 U.S.C. § 860; and one count of possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Thereafter, Petitioner was sentenced to 360 months in prison.
Petitioner directly appealed his sentence claiming that the District Court committed procedural error by failing to give meaningful consideration to his argument that his status as a career offender substantially over-represented the seriousness of his criminal history. The United States Court of Appeals for the Third Circuit affirmed the judgment of the District Court.
A. Ineffective Assistance of Counsel Petitioner's first ground for relief is trial counsel's alleged ineffective assistance. This claim, which is assessed under the two-pronged Strickland framework, is grounded in the Sixth Amendment right to "'effective assistance of counsel'-that is, representation that does not fall 'below an objective standard of reasonableness' in light of 'prevailing professional norms.'" Bobby v. Van Hook, 130 S. Ct. 13, 16 (2009) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). Although this claim was not raised on direct appeal, the Court will consider it because, unlike other claims lodged to attack a sentence, ineffective assistance of counsel may be raised for the first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500, 504 (1998).
1. Legal Standard Under Strickland, Petitioner must make two showings to obtain relief. First, Petitioner must show that his lawyer's performance was deficient by identifying counsel's "acts or omissions" that were outside the bounds of "reasonable professional judgment." Strickland, 466 U.S. at 688, 690. The Court must decide whether the acts or omissions "were outside the wide range of professionally competent assistance." Id. at 690. The Court judges counsel's performance based on the case-specific facts, viewed as of "the time of counsel's conduct." Id. Under this first prong, a petitioner "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Second, Petitioner must show "that the deficient performance prejudiced the defense," meaning that "counsel's errors were so serious as to deprive the defendant of a fair trial" with a reliable result. Id. at 687. Petitioner must therefore show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is defined as "a probability sufficient to undermine confidence in the outcome." Id. at 669.
2. Application Petitioner states that his ineffective assistance argument is based on trial counsel's failure to call Ronald Ruffin ("Ruffin") to testify that Defendant did not sell crack cocaine. The record, however, conclusively demonstrates that Petitioner is not entitled to § 2255 relief on this basis.
During trial, the Government's witness, Sandra Willadsen ("Willadsen"), testified about her role as the intermediary for five transactions involving crack cocaine and cocaine between the Defendant and law enforcement. (Trial Tr. 6-34, April 24, 2006.) Willadsen's direct examination establishes three things: (1) she procured crack cocaine and/or cocaine from Petitioner on June 17, July 7, July 28, and August 11, 2004; (2) she paid Defendant for the drugs on each occasion with money law enforcement officials provided her; and (3) after each transaction she received payment from the Defendant and the officials for acting as an intermediary. (Id.) On cross, Willadsen discussed how she met Petitioner. (Id. at 60:6-25.) Willadsen explained that she had a romantic relationship with Ruffin, a relative of Petitioner. (Id. at 60:6-11.) Additionally, Willadsen stated that during the time of the drug sales at issue, Ruffin was incarcerated for selling drugs. (Id. at 60:14-22.)
Petitioner argues that his counsel was ineffective because he did not put Ruffin on the stand to rebut Willadsen's testimony. Petitioner states that if Ruffin was put on the stand he would have discredited Willadsen's testimony by stating that Petitioner did not sell crack cocaine. (Second Pet. 6; Pet.'r's Reply 2; Ruffin Affidavit.) Petitioner states that if Ruffin was permitted to testify "[t]he jury would have returned a verdict of not guilty for the cocaine base (crack) . . . which would have resulted in a lesser sentence." (Pet.'r's Reply 3.)
"Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. Based on the deference afforded counsel's decisions, Petitioner has not provided sufficient evidence to overcome the presumption that the challenged act was sound trial strategy. On cross examination, it was established that Ruffin was in jail at the time of the crack cocaine and cocaine sales in question. Therefore, Ruffin could not have been present during any of the drug transactions in question. Based on this information, it was reasonable for Defense counsel not to put Ruffin on the stand to testify that Petitioner did not sell crack cocaine because Ruffin could not have testified credibly and based on firsthand knowledge. Moreover, it was established that Ruffin was a convicted drug dealer. Undoubtedly, ...