The opinion of the court was delivered by: Juan R. Sanchez, J.
Petitioner Carlos Manuel Perez asks this Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Perez also seeks an evidentiary hearing, arguing he received ineffective assistance of counsel at trial, sentencing, and on appeal, in violation of his Sixth Amendment rights. For the following reasons, his petition will be granted in part and denied in part. FACTS
On April 14, 2003, an assailant fired shots at Philadelphia 76ers basketball player Allen Iverson and a number of his companions outside a Philadelphia nightclub. After investigation, the Philadelphia police identified Perez as a suspect, and obtained a search warrant for his residence. On April 24, 2003, Philadelphia police officers executed the warrant at an apartment Perez shared with his girlfriend, Bobbi Compton. Compton was the only person present during the search because Perez had fled the state after the shooting. Compton gave the officers written consent to search two vehicles parked at the residence: a 2002 Mercedes-Benz and a 1995 green Pontiac Grand Am.*fn1
Nothing was recovered from the search of the Mercedes. However, officers recovered a duffel bag from the trunk of the Pontiac containing (1) 39.5 grams of cocaine base ("crack"), (2) 990.5 grams of cocaine, (3) 275.6 grams of marijuana, (4) a loaded revolver with an obliterated serial number; and (5) an unloaded semiautomatic handgun. Perez's Pennsylvania identification card and his passport were also in the trunk. Although both Perez and Compton had access to the Pontiac, the police officers concluded the items in the Pontiac belonged to Perez.
In May 2003, Perez returned to Pennsylvania and surrendered to the police. While in custody, Perez signed a proffer letter admitting he owned the contraband found in the Pontiac. On August 28, 2003, a four-count indictment was issued charging Perez with possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(d); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1).
Before trial, Perez moved to suppress the physical evidence uncovered in the Pontiac. This Court denied his motion, finding the search of the car did not exceed the scope of the search warrant, and holding Compton had authority to consent to the search of the Pontiac.*fn2 Perez's first trial resulted in a mistrial after the jury could not reach a unanimous verdict. Following a second trial, Perez was convicted on all four counts. Perez did not testify at either trial. Defense witness Kimberly Mastrianni, Compton's mother, testified at the first trial, but was not called as a witness at the second trial.*fn3 On February 17, 2006, Perez was sentenced to 252 months of imprisonment.
This sentence consisted of a sentence of 168 months of imprisonment on the crack, marijuana, and cocaine convictions--a sentence at the high end of the Guidelines range--and a sentence of 84 months on the firearms charge, to be served consecutive to the 168-month sentence. See United States v. Perez, Crim. No. 03-554, Document 85 at 12 (E.D. Pa. Mar. 9, 2006). Both Perez's conviction and sentence were affirmed on appeal. United States v. Perez, 246 F. App'x 140 (3d Cir. 2007). On June 24, 2008, Perez filed a petition for relief from his sentence pursuant to 28 U.S.C. § 2255, claiming he received ineffective assistance of counsel during his trial, sentencing, and appeal.*fn4 DISCUSSION
Pursuant to § 2255, a prisoner in custody may seek to have his sentence vacated, set aside, or corrected if it was imposed in violation of the Constitution or laws of the United States, or is otherwise subject to collateral attack. Id. Such relief may be granted only if an error of law or fact occurred, and if such error constituted "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (citation omitted). In general, claims not raised on direct appeal may not be raised on collateral review, but claims of ineffective assistance of counsel can be raised for the first time in a § 2255 petition. Massaro v. United States, 538 U.S. 500, 503-04 (2003).
To establish his counsel was ineffective, a petitioner must (1) show his attorney's performance was deficient and (2) demonstrate such deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Palmer v. Hendricks, 592 F.3d 386, 394 (3d Cir. 2010). "The first prong requires a petitioner to demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed [to] the defendant by the Sixth Amendment." Id.
(citation and internal quotation marks omitted). To meet this prong, counsel's actions must fall below an objective standard of reasonableness. See Strickland, 466 U.S. at 687 ("The proper measure of attorney performance is reasonableness under prevailing professional norms."). The second prong requires the petitioner to demonstrate the "errors were sufficiently serious as to deprive the defendant of a fair trial" with a reliable result. Id. To prove prejudice, the petitioner must show that "but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. (citing Strickland, 466 U.S. at 694). The burden is on the petitioner to establish both prongs of the Strickland test. Id. at 693 ("Even if a defendant shows that particular errors of counsel were unreasonable . . . the defendant must show that they actually had an adverse effect on [his] defense.").*fn5
In his § 2255 petition, Perez raises six instances of alleged ineffective assistance of counsel.*fn6
Perez argues (1) his sentencing attorney was ineffective for failing to consult with Perez regarding Perez's Presentence Investigation Report (PSR); andhis trial counsel was ineffective for (2) refusing to allow Perez to testify, (3) failing to investigate or pursue a self-protection defense in regard to Perez's firearm charges, (4) failing to call Mastrianni to testify during the second trial, and (5) failing to seek suppression of the physical evidence obtained during the search of Perez's residence; and (6) his appellate counsel was ineffective for failing to raise these five issues on appeal.
Perez first contends his sentencing counsel was ineffective by failing to consult with him regarding the PSR, and by failing to object to the erroneous assessment of three criminal history points in the PSR. The PSR assessed Perez nine criminal history points. Seven of Perez's criminal history points were assessed for four criminal convictions he had incurred in Georgia between 1996 and 2002, including a 2002 conviction for reckless conduct, and for one conviction he incurred in Pennsylvania in 2003. Perez was assessed one criminal history point for the 2002 Georgia reckless conduct conviction and, because the probation officer believed Perez was on probation for this conviction at the time he committed the instant offense, an additional two points were added to his criminal history score. Perez, however, was not sentenced to probation for the reckless conduct conviction. Thus, he should not have been assessed any criminal history points for this conviction, and should not have been assessed the additional two criminal history points. Despite Perez's assertion that he was not placed on probation for this conviction, his sentencing counsel advised this Court that he had no objection to anything in the PSR.
The Government concedes the attorney who represented Perez at sentencing should have investigated Perez's claim that a mistake had been made in his PSR. "[W]here defense counsel fails to object to an improper enhancement under the Sentencing Guidelines, counsel has rendered ineffective assistance." Jansen v. United States, 369 F.3d 237, 244 (3d Cir. 2004). Such ineffective assistance necessitates resentencing if the error harmed the defendant's substantial rights, i.e. the error was prejudicial and affected the outcome of the defendant's judicial proceedings. Stevens, 223 F.3d at 242-44. "[A]ny amount of actual jail time has Sixth Amendment significance" and can constitute prejudice to a defendant. Glover v. United States, 531 U.S. 198, 203 (2001) (holding an increase in the Guideline range of 6 to 21 months caused by an error in the PSR calculation to which defense counsel did not object could be significant enough to constitute prejudice under Strickland); see also United States v. Otero, 502 F.3d 331, 3337 (3d Cir. 2007) (holding "[t]he prejudice prong is satisfied 'when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing . . . which would not have occurred but for counsel's error" and quoting United States v. Franks, 230 F.3d 811, 815 (5th Cir. 2000), in which the court held a sentence which was increased by at least three months based on an erroneously applied sentencing enhancement constituted ...