The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is Michael McKinnon's motion filed pursuant to 28 U.S.C. § 2255 to vacate judgment. McKinnon seeks relief on the basis of claims of ineffective assistance of trial and appellate counsel and alleged errors by the trial court as follows:
1) Trial counsel rendered ineffective assistance by allegedly failing to interview Michelle Resback;
2) Trial counsel rendered ineffective assistance by not objecting on Confrontation Clause grounds to the admission of the marijuana laboratory results where there was no reason to believe the laboratory analysis was faulty or the Government could not produce the analyst;
3) Appellate counsel rendered ineffective assistance by not asserting, as a separate Confrontation Clause violation, that the court erred by limiting trial counsel's cross-examination of a coconspirator Government witness regarding his and Defendant's understanding of the legal definition of money laundering;
4) Appellate counsel rendered ineffective assistance by purportedly declining to attack the money laundering conspiracy conviction on the grounds articulated in United States v. Santos, 553 U.S. 507 (2008) and Cuellar v. United States, 553 U.S. 550 (2008);
5) Trial counsel rendered ineffective assistance by apparently not moving to sequester witnesses;
6) Defendant's consecutive mandatory sentence for the 18 U.S.C. § 924(c) violation was improper under Abbott v. United States, 131 S. Ct. 18 (2010), which affirmed the Third Circuit's decision in United States v. Abbott, 574 F.3d 203 (3d Cir. 2009);
7) Appellate counsel rendered ineffective assistance by not challenging the sufficiency of the evidence to support Defendant's conviction for distribution of crack cocaine;
8) Trial counsel rendered ineffective assistance by not objecting to the obstruction of justice enhancement to his guidelines offense level.
9) Appellate counsel rendered ineffective assistance by not asserting on appeal that Count 4 of the indictment failed to charge an offense against the United States;
10) Appellate counsel rendered ineffective assistance by not asserting on appeal that this court erred by not dismissing juror Gargiulo based on his acquaintance with Scott Thomas;
11) Trial counsel rendered ineffective assistance by not contesting the drug quantity determination in the presentence report;
12) Trial counsel and appellate counsel rendered ineffective assistance by not contesting the presentence report's enhancement of Defendant's offense level for reckless endangerment while fleeing law enforcement; and
13) Trial counsel and appellate counsel committed errors whose effect, individually or cumulatively, would require resentencing.
McKinnon was charged in a sixth superseding indictment with the following offenses: Count 1, distribution and possession with intent to distribute crack cocaine, cocaine hydrochloride and marijuana, in violation of 21 U.S.C. § 841(a)(1); Count 2, conspiracy to distribute and possess with intent to distribute crack cocaine, cocaine hydrochloride, marijuana, and other controlled substances, in violation of 21 U.S.C. § 846; Count 3, conspiracy to launder proceeds of the distribution of controlled substances in violation of 18 U.S.C. § 1956(h); Count 4, possession and use of firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); Count 5, assault on federal officers, in violation of 18 U.S.C. § 111; Count 6, criminal forfeiture of $17,500 in currency constituting drug proceeds as provided for by 21 U.S.C. § 853. (Sixth Superseding Indictment, Doc. 337.) The sixth superseding indictment also included special findings of the grand jury regarding various facts giving rise to enhancements under the United States Sentencing Guidelines, due to the uncertainty then existing as to whether Blakely v. Washington, 542 U.S. 296 (2004), would render the guidelines unconstitutional. McKinnon went to trial and was found guilty on Counts 1 through 4, not guilty on Count 5 and a verdict of forfeiture on Count 6. In response to interrogatories in the verdict form, the jury also found beyond a reasonable doubt that McKinnon distributed or possessed with intent to distribute 1.5 kilograms or more of crack cocaine, 500 grams or more of cocaine hydrochloride, and 100 kilograms or more of marijuana; had conspired to distribute 1.5 kilograms or more of crack cocaine, 500 grams or more of cocaine hydrochloride, and 100 kilograms or more of marijuana; that he laundered more than $200,000 in drug proceeds; that he had possessed a deadly weapon; that he had obstructed justice; and had created a substantial risk of death or serious bodily injury in the course of fleeing from law enforcement officers. (Doc. 451.) Defendant filed post-trial motions. The Court granted a judgment of acquittal as to Count 2 but otherwise denied the motion in all other respects.
McKinnon was sentenced to an aggregate term of 40 years imprisonment, five years of supervised release, a $1,000 fine, $1,000 in community restitution, and a $300 special assessment. (Doc. 563.) The 40-year prison term was a downward variance from the guideline range of life imprisonment.
McKinnon appealed to the United States Court of Appeals for the Third Circuit which affirmed the judgment of conviction and sentence. (See United States v. McKinnon, 301 Fed. App. 117 (3d Cir, 2008). Certiorari was denied. (See McKinnon v. United States, 129 S. Ct. 2792 (2009). While the appeal was pending, McKinnon filed various other motions which were denied or dismissed. (See Govt.'s Brief in Opp. to Deft.'s Motion to Vacate Judgment ("Govt.'s Brief") doc. 691, at pp. 3-4.)
The Government adequately sets forth the facts in its brief (doc. 691 at pp. 5-6) and are adopted by this court. They will not be repeated herein.
A. Competency 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 ...