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Terrance Curtis Triplett v. United States of

August 24, 2011

TERRANCE CURTIS TRIPLETT,
PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM AND ORDER OF COURT DENYING DEFENDANT'S MOTION FOR HABEAS CORPUS RELIEF UNDER 28 U.S.C. ' 2255 (DOC. NO. 58)

In this criminal action, Petitioner, Terrance Curtis Triplett, who previously pled guilty to two counts of a four-count indictment and was sentenced to a term of 188 months of imprisonment, has filed a pro se Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255, primarily alleging ineffective assistance of counsel (grounds 1, 2, and 5) and claiming that as a result, this Court imposed an unreasonable sentence (ground 4). Doc. no. 58. More specifically, with respect to the ineffective assistance of counsel, Petitioner contends that his counsel was ineffective when he: (1) failed to file a direct appeal of the sentence as requested by Petitioner; (2) erroneously advised Petitioner to plead guilty to two counts of a four-count indictment so that he would not be deemed a career offender; and (3) failed to appeal this Court‟s denial of Petitioner‟s Motion to Suppress.

In addition, Petitioner‟s § 2255 Motion also alleges that this Court erred in its decision to partially deny Petitioner‟s Motion to Suppress Evidence (ground 3), and claims that as a result, this Court imposed an unreasonable sentence (ground 4). Petitioner‟s Motion to Suppress relates to evidence which was seized from Petitioner‟s home and his three motor vehicles pursuant to a search warrant issued solely for Petitioner‟s residence.

Finally, Petitioner alleges that his agreement to waive appeal from his sentence is invalid (ground 6). This agreement was documented in Petitioner‟s plea agreement with the United States. For the following reasons, the Petition shall be denied and no certificate of appealability shall issue.

I. Factual and Procedural Background

On February 16, 2010, Petitioner was charged in a four-count Indictment with various violations of federal law including: at Count One, possession with intent to distribute oxycodone; at Count Two, possession with intent to distribute less than five hundred grams of a mixture and substance containing a detectable amount of cocaine; at Count Three, possession of a firearm by a convicted felon; and at Count Four, possession of a firearm in furtherance of a drug trafficking crime. Doc. no. 15.

On April 28, 2010 Petitioner filed a Motion to Suppress Physical Evidence. Doc. no. 23. In his Motion, Petitioner alleged that all four charges against him were based on evidence seized pursuant to a search warrant issued to the Pennsylvania State Police for Petitioner‟s residence, which was an apartment. In his Motion to Suppress, Petitioner alleged that the affidavit in support of the search warrant failed to provide the requisite probable cause for the issuance of the warrant, and claimed the evidence seized came from his three vehicles, not just his apartment.

On June 8, 2010, upon review of the evidence presented by Petitioner, and after careful consideration of Petitioner‟s and the Government‟s respective positions, this Court granted in part and denied in part Petitioner‟s Motion to Suppress. Doc. no. 27. Specifically, this Court held that the affidavit provided a substantial basis for the issuance of the search warrant for Petitioner‟s residence, but not his vehicles. Accordingly, the Court granted Petitioner‟s Motion to Suppress all physical evidence found in his vehicles, but denied the Motion to Suppress all physical evidence obtained from Petitioner‟s residence.

On September 1, 2010 the Government filed, "Information Charging Prior Offense Pursuant to Title 21, United States Code, Section 851." See doc. no. 37. This document outlined prior offenses committed by Petitioner specifically one on February 24, 2003 where Petitioner had been convicted in the Court of Common Pleas of Allegheny County for delivery of a controlled substance and was sentenced to "11 1/2 months to 23 months imprisonment followed by 4 years probation." Id.

On September 1, 2010, Petitioner entered into a signed plea agreement with the United States, and pled guilty to Counts Two and Three of the Indictment -- possession with intent to distribute less than five hundred grams of a mixture and substance containing a detectable amount of cocaine, and possession of a firearm by a convicted felon, respectively. Doc. nos. 39 and 40. This prior offense outlined in the Government‟s submission was discussed in open court by the Government and this Court during the plea hearing also held September 1, 2010, as was the specific impact the prior conviction would have on Petitioner‟s maximum sentence. See doc. no. 60, pp. 9-10.

The plea agreement specifically indicated that at the time of sentencing, the United States would move to dismiss the remaining counts of the Indictment (Counts One and Four). Doc. no. 40, p. 4. In exchange for the motion to dismiss Counts One and Four, the agreement further indicated that Petitioner would not "seek a downward departure or a variance from the recommended guideline sentence range." Id. at p. 5. The Agreement also indicated that the United States Attorney would move this Court to reduce the offense level by three levels for acceptance of responsibility. Id.

The plea agreement also indicated:

[Petitioner] and the United States Attorney further understand and agree to the following:

1. The penalty that may be imposed upon [Petitioner] is:

(a) A term of imprisonment of not more than 40 years;

(b) A fine of $1,250,000.00;

(c) A term of supervised release of 6 years;

(d) A special assessment under 18 U.S.C. § 3013 of $200.00. Id.

Finally, the plea agreement which Petitioner signed clearly indicated that Petitioner waived his rights to take a direct appeal (subject to three exceptions):

11. [Petitioner] waives the right to take a direct appeal from his conviction or sentence under 28 U.S.C. §1291 or 18 U.S.C. §3742, subject to the following exceptions:

(a) If the United States appeals from the sentence, [Petitioner] may take a direct appeal from the sentence.

(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, [Petitioner] may take a direct appeal from the sentence.

See doc no. 40, p. 4. He further agreed to waive his rights to file this instant Petition attacking his sentence:

[Petitioner] further waives the right to file a motion to vacate sentence, under 28 U.S.C. §2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence. Id.

During the change-of-plea hearing held on September 1, 2010 this Court reiterated that the maximum sentence it could impose under the law for the commission of the offenses to which Petitioner pled guilty was a term of imprisonment of not more than forty years, a fine of $1,250,000.00, a term of supervised release of six years, and a special assessment of $200.00. See doc. no. 60, pp. 9-10. Petitioner was asked by this Court if he understood the potential maximum sentence that the Court was authorized to impose, and Petitioner indicated that he did understand. Id. at p. 10. Finally, when the Government was asked to provide the Court with the guideline range applicable to Petitioner given his criminal history and the offenses to which he was pleading guilty, the Government indicated that Petitioner would be classified as a career offender due to his prior controlled substance conviction noted in the Government‟s Section 851 submission, as well as other prior convictions (one of which was for robbery). Id. at p. 12. As a result, the Government indicated that the guideline range would be 188 to 235 months of imprisonment. Id. When the Court asked Petitioner‟s attorney what he believed the applicable guideline range to be, the attorney indicated he agreed that the Government‟s assessment was correct and he would form "a definite opinion" after obtaining a copy of the presentence report. Id.

Also during the September 1, 2010 plea hearing, after placing Petitioner under oath, the Court asked Petitioner if he understood that he was "giving up" his right to appeal and file the instant motion. Again, Petitioner indicated that he did understand the waivers he was making.

BY THE COURT:

Q Sir, do you understand that you and the Government have the right to appeal any sentence I impose unless you voluntarily give up that right?

A Yes, sir.

Q Do you understand that in the plea agreement that you‟re giving up your right to appeal both the validity of your plea and your length of your sentence with only three limited exceptions? [The Court reads the exceptions from the plea agreement.] Do you understand?

A Yes, sir.

Q Do you understand that you‟re also giving up any right that you may have to file a motion to vacate sentence under

Title 28 US Code Section 2255 for habeas corpus relief and the right to pursue any other collateral proceedings attacking your conviction or sentence?

A Yes, sir.

Q And, finally, in summary, do you understand that you are giving up your right to appeal except as I have stated, as well as your right to file the habeas corpus relief and attack your sentence in any other collateral proceeding?

A Yes, sir.

Id. at pp. 12, 25-26.

Following the guilty plea hearing held on September 1, 2010, the United States Probation Office prepared and issued draft presentence report for counsel‟s eyes‟ only, on January 28, 2011. Doc. no. 44. On February 23, 2011, the Probation Office issued and filed a Final Presentence Investigation Report and a Sentencing Recommendation for this Court. Doc. nos. 46 and 47. In the Final Presentence Investigation Report the Probation Officer calculated the Offense Level as follows:

26. The controlling guideline for Count [Two] . . . calls for an offense level of 20. The Government evidence, through laboratory analysis, determined that the type and quantity of controlled substance attributable to [Petitioner] in this case, for the purposes of the sentencing guidelines was 226 grams of powder cocaine. Upon consideration of all applicable specific offense characteristics . . . which prescribes a 2-level increase if a dangerous weapon is possessed . . . the adjusted level is 22.

27. The controlling guideline for Count [Three] . . . prescribes a base offense level of 24 if [Petitioner] committed any part of the instant offense subsequent to sustaining two felony convictions of either a crime of violence or a controlled substance offense. . . . Upon consideration of all applicable specific offense characteristics . . . which prescribes a 4-level increase in the offense level if [Petitioner] possessed or used the firearm in connection with another felony offense . . . the adjusted offense level is 28.

28. Comparison of the adjusted offense levels concludes that that the controlling guideline in this case is [the guideline for Count Three] because it produces the highest offense level.

Doc. no. 46, pp. 6-7.

Accordingly, the Probation Officer indicated in the Final Presentence Investigation Report that Petitioner‟s base offense level was 24, but then he added four levels to arrive at an adjusted level of 28. However, the Report also indicates that the Probation Officer then subtracted three levels for acceptance of responsibility and timely ...


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