The opinion of the court was delivered by: Ditter, J.
Before me is a motion to Vacate, Set Aside, and/or Correct a Sentence pursuant to 28 U.S.C. § 2255, filed by Levoin Manley. Manley is currently confined at the United States Penitentiary at Waynesburg, Pennsylvania. For the reasons set forth below, the motion is DENIED.
FACTUAL AND PROCEDURAL HISTORY
In April, 2007, Levoin Manley was indicted and charged with four drug offenses: possession with intent to distribute cocaine base, possession with intent to distribute marijuana, and two counts of distribution of cocain base. On May 9, 2007, the government filed a notice of intent to seek enhanced penalties pursuant to 21 U.S.C. § 851.*fn1
Manley filed a motion to suppress statements he made during the execution of a search warrant of a home he shared with his parents. He stated that they didn't know or have anything to do with the drugs that were up in his room. The suppression hearing was conducted by the Honorable John R. Padova on September 18, 2007. At the hearing Officer Joseph Smith testified as to Manley's statements and that Manley directed the officers to narcotics found in an upstairs bedroom. Officer Smith also testified that he did not include these statements in any written report. Manley's mother also testified that her son told the officers that his parents "don't know nothing about this." Suppression Tr. 37. Judge Padova denied the motion to suppress.
This case was transferred to me for a jury trial.
The government presented evidence from which the jury could conclude that on the night of February 23, 2007, Philadelphia police officers conducted surveillance of a house identified as 5048 Tacoma Street. A few feet beyond this house, Tacoma dead ends into Manheim Street. Around the corner in the 100 block of Manheim Street there was an abandoned house referred to by the police as a crack or smoke house, one where men and women would go to use drugs.
On the night in question, an officer observed the defendant come to the door of 5048 Tacoma Street, heard him make a low whistle-like noise after which a number of individuals approached the defendant and in exchange for money received from him, small, unknown objects. A physical description of these persons was broadcast to other officers who in turn arrested a man and woman of matching description inside the crack house in the possession of green and pink packets containing crack cocaine. In a later search of 5048 Tacoma Street officers found green and pink packets containing crack cocaine. From this evidence the jury could conclude that the defendant was selling crack cocaine.
Photographs of the exterior and interior of the Manheim Street crack house were received in evidence.
Officer Smith testified that when he and other officers went to the Tacoma Street house pursuant to a search warrant, "Manley blurted out that his parents didn't have anything to do with what was going on, and that he alerted us to some narcotics that were upstairs in the room." Tr., Dec. 4, 2007, 82-83. Defense counsel cross-examined Officer Smith about Manley's statements and his failure to record them in any police reports. Officer Smith was also examined on his failure to record any of his observations during the surveillance or execution of the search warrant.
On the third day of trial, defense counsel brought to my attention the fact that a juror's husband had been present in the courtroom during testimony concerning a firearm found at the Manley house during the execution of the search warrant. This evidence was not going to be heard by the jury so counsel was concerned the husband may have discussed this testimony with his wife. To address this concern, the husband was called to the stand and questioned under oath by defense counsel. The husband testified that he and his wife had not discussed the trial in any way. Satisfied, counsel made no further motion to remove the juror. Of course, the juror was instructed throughout the trial not to discuss the evidence with anyone.
A special verdict form was used by the jury that required specific findings as to the quantities of drugs involved in each count of the indictment. After deliberations, the jury convicted Manley on three of the four counts charges. Manley filed a motion under Federal Rules of Criminal Procedure 29 and 33 asking that I set aside the guilty verdict or grant a new trial on his conviction for possession with intent to deliver more than five but less than fifty grams of cocaine base because the jury's calculation of the drug quantity was not supported by the evidence. On March 6, 2008, I vacated Manley's conviction on count one and entered a judgment of conviction for the lesser included offense of possession with intent to distribute less than five grams of cocaine base. Manley's motion for a new trial was denied. The government's request for reconsideration was denied.
On May 7, 2008, Manly was sentenced to 267 months imprisonment on count one with a concurrent sentence of 240 months imprisonment on courts three and four, 72 months supervised release, and a special assessment of $300.
Manley filed a timely appeal challenging the enhanced maximum sentence he received pursuant to the career criminal enhancement provision of 21 U.S.C. § 851, fully recognizing that the Supreme Court had previously held ...