The opinion of the court was delivered by: (Chief Judge Kane)
Pending before the Court is Petitioner Rodney Hutchinson's motion to vacate, modify, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 (Doc. No. 1561.) The motion is now ripe, and for the reasons that follow, the Court will deny the motion.
On May 3, 2006, an indictment was returned against multiple defendants, including Petitioner, charging them with the manufacture and distribution of approximately 1,000 kilograms of marijuana. (Doc. No. 8.) An arraignment hearing was held for Petitioner on May 16, 2006, at which Petitioner entered a not guilty plea. (Doc. No. 37.) At that time, Federal Public Defender Thomas A. Thornton was appointed to represent Petitioner. (Doc. No. 40.)
On May 31, 2006, a superseding indictment was returned against Petitioner and other defendants. (Doc. No. 59.) Petitioner was charged with: conspiracy to distribute and possess with intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. § 846 (Count I); conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h)(2) (Count II); and criminal forfeiture (Count X). (Id.) On June 20, 2006, Petitioner entered a plea of not guilty to the superseding indictment. (Doc. No. 349.)
On May 26, 2006, Petitioner filed a motion to suppress evidence seized after a traffic stop. (Doc. No. 46.) A hearing addressing Petitioner's detention and his motion to suppress was held on August 15, 2006. Petitioner's motion for release was denied, and the Court took the motion for suppression under advisement. On January 18, 2007, the Court issued an order denying Petitioner's motion to suppress. (Doc. No. 660.)
On February 2, 2007, Attorney Arthur Gutkin entered an appearance on behalf of Petitioner. (Doc. No. 682.) Thereafter, on February 14, 2007, Attorney Thornton filed a motion to withdraw from his representation of Petitioner. (Doc. No. 693.) In his motion, Attorney Thornton noted that Petitioner had retained Attorney Gutkin, and that the Federal Public Defender's representation was no longer needed in the matter. (Id.) The Court granted Attorney Thornton's motion to withdraw. (Doc. No. 694.)
On May 9, 2007, a second superseding indictment was returned against Petitioner and other defendants. (Doc. No. 866.) Petitioner was charged with: being at the center of a conspiracy to distribute and possess with intent to distribute 1,000 kilograms or more of marijuana (Count I); conspiracy to commit money laundering (Count II); and criminal forfeiture (Count VI). (Id.) An arraignment hearing was held on May 29, 2007, at which Petitioner entered a not guilty plea. (Doc. No. 914.)
On December 12, 2007, Attorney Gutkin filed a motion to withdraw his representation of Petitioner. (Doc. No. 1290.) In his motion, Attorney Gutkin noted that Petitioner had instructed Gutkin to file a motion to suppress evidence and an action against the Government for vindictive prosecution. (Id.) Attorney Gutkin further stated that he would not file such motions because they lacked sufficient factual evidence. (Id.) The Court held a hearing on the motion to withdraw on December 20, 2007, at which the Court granted Attorney Gutkin's motion to withdraw and appointed Attorney William Fetterhoff to represent Petitioner. (Doc. Nos. 1305, 1318.)
On March 19, 2008, Petitioner entered into a plea agreement with the Government, in which he agreed to plead guilty to Counts I and II of the second superseding indictment and to the entry of an order of forfeiture. (Doc. No. 1373.) A plea hearing was held on April 10, 2008, at which Petitioner pleaded guilty to Counts I and II of the second superseding indictment. (Doc. No. 1396.) The Court conducted a colloquy with Petitioner, found that Petitioner was acting knowingly and voluntarily, and accepted the guilty plea. (Doc. No. 1507 at 25-27, 35.)
On July 7, 2008, Petitioner filed a letter with the Court which stated the following:
I accept responsibility for actively participating in a conspiracy to distribute and posses [sic] with intent to distribute 219 pounds of marijuana. The marijuana originated in Tucson, Arizona[,] and was picked up by couriers acting at my direction. Based on the complexity of this case, I accept that 400kg-700kg would be appropriate or would be foreseeable to me. However, there were a lot of other conspiracies that was [sic] going on within this conspiracy that I should not be held responsible for, because the couriers that I found for other people was [sic] also working for Abraham Perez and others. As to how this conspiracy started or how Mac George met Abraham Perez, it is beyond my comprehension because that was before I came to this country. On the other hand, what Mac George did or got caught with in this conspiracy had nothing to do with me. Mac George has never worked for me or act [sic] on my direction at anytime [sic]. With that being said, everybody was working for Mac George and Tallman. My involvement in this marijuana distribution scheme was a terrible mistake which I greatly regret, especially since it has cause [sic] and continues to cause so much pain and hardship for my wife, children and others. Now that I have seen how serious this offense is and the impact it has on me and my family, I will never again in my life be engaged in any type of criminal activity. I am sincerely sorry and accept full responsibility for my actions. (Doc. No. 1437.) The letter was signed by Petitioner.
On August 8, 2008, Petitioner filed a sentencing memorandum, in which he stipulated, inter alia, that: (1) the amount of marijuana attributable to Petitioner should be 1,000 to 3,000 kilograms; (2) Petitioner should receive an enhancement for possession of a gun; and (3) Petitioner should receive a deduction for acceptance of responsibility. (Doc. No. 1481.) On August 28, 2008, the Court sentenced Petitioner to a term of 210 months, consisting of a sentence of 110 months on Count I of the second superseding indictment, and 100 months on Count II of the second superseding indictment to be served consecutively to the sentence on Count I. In addition, the Court ordered supervised release for three years on both counts, to be served concurrently; a $100 special assessment on each count; and a $500 fine on each count. The Court then granted the Government's motion to dismiss all other counts against Petitioner.
On August 29, 2008, Petitioner filed a notice of appeal. (Doc. No. 1491.) His counsel, Attorney Fetterhoff, also filed a motion to withdraw as counsel and a brief in support of that motion pursuant to Anders v. California, 386 U.S. 738, 744 (1967). (Doc. No. 1520 at 2.) On review, the United States Court of Appeals for the Third Circuit found that Petitioner's appeal was frivolous because, although he challenged this Court's denial of his motion to suppress drug evidence, "that issue is moot because [he] ultimately stipulated that the amount of marijuana involved in the conspiracy was 1,000 to 3,000 kilograms." (Id. at 4-5.) After reviewing Petitioner's plea colloquy, the appellate court found that Petitioner entered his guilty plea voluntarily and knowingly. (Id. at 5.) Finding all other arguments raised by Petitioner were frivolous, the Third Circuit affirmed Petitioner's conviction and sentence.
On November 2, 2010, Petitioner filed his motion to vacate. (Doc. No. 1561.) On March 14, 2011, the Court ordered that an evidentiary hearing be held regarding Petitioner's ineffective assistance of counsel claims raised in regard to his representation by Attorney Fetterhoff. (Doc. No.1592.) The evidentiary hearing was held on June 27, 2011, and the Government and Petitioner subsequently filed supplemental briefing.
In order to survive, a collateral attack of a sentence based upon a claim of ineffective assistance of counsel must meet a two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The first Strickland prong requires a petitioner to "establish first that counsel's performance was deficient." Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This prong requires Petitioner to show that counsel made errors "so serious" that counsel was not functioning as guaranteed under the Sixth Amendment. Id. (citation omitted). In this way, Petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. (citing Strickland, 466 U.S. at 688). However, "[t]here is a 'strong presumption' that counsel's performance was reasonable." Id.
Under the second Strickland prong, Petitioner "must demonstrate that he was prejudiced by counsel's errors." Jermyn, 266 F.3d at 282 (citation omitted). This prong requires Petitioner to show that "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland, 466 U.S. at 694.) "Reasonable probability" is defined as "'a probability sufficient to undermine confidence in the outcome.'" Id. (quoting Strickland, 466 U.S. at 694). "A court can choose to address the prejudice prong before the ineffectiveness ...