The opinion of the court was delivered by: Chief Judge Kane
Pending before the Court is Petitioner Omar Davenport's motion to vacate pursuant to 28 U.S.C. § 2255. (Doc. No. 490.) The motion has been fully briefed and is ripe for disposition. After reviewing the submitted materials, together with the record of the underlying criminal case, the Court finds that Petitioner is not entitled to relief. Accordingly the Court will decide the matter without an evidentiary hearing.
On March 4, 2009, the United States entered a three-count indictment against Petitioner, charging him and other co-defendants with drug trafficking, conspiracy, and interstate travel in aid of drug trafficking. (Doc. No. 1.) On March 9, 2009, Petitioner was arrested in New York City by federal and local authorities, for the federal warrant from his indictment in this case, and for a state parole violation. Petitioner was on parole with the Pennsylvania State Board of Probation and Parole at the time of the events in this case. On October 14, 2009, Petitioner pleaded guilty to conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin. (Doc. No. 236.)
The Court sentenced Petitioner to a 200 months term of imprisonment, four years of supervised release, a $1,500 fine, and a $100 special assessment. (Doc. No. 416.) This sentence was within the sentencing guideline range of 188 to 235 months. Petitioner did not file a direct appeal. (See Doc. No. 490 at 4.) On March 28, 2011, Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255, alleging that he was denied his constitutional rights due to ineffective assistance of counsel. (Doc. No. 490.) The Court issued a notice of election on April 4, 2011, to which Petitioner did not respond. (Doc. No. 491.) On June 29, 2011, the Government filed a response to Petitioner's § 2255 motion. (Doc. No. 502.) Petitioner filed a reply to the Government's response on July 22, 2011, asking the Court to schedule an evidentiary hearing. (Doc. No. 505.)
Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct the prisoner's sentence. However, § 2255 does not afford a remedy for all errors that may have been made at trial or sentencing. United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993) (citing United States v. Addonizio, 442 U.S. 178 (1979)). "The alleged error must raise 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. (citation omitted). Furthermore, § 2255 generally limits federal prisoners' ability to attack the validity of their sentences to four grounds. Hill v. United States, 368 U.S. 424, 426-27 (1962). A prisoner may claim relief by alleging that: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Id. (citing 28 U.S.C. § 2255).
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, 687-88, 694 (1984). See George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001). The first Strickland prong requires 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. 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." Id. 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).
In his motion to vacate, Petitioner argues that his constitutional rights were violated because his trial counsel, Erin Zimmerer, was ineffective. (Doc. No. 490 at 13-14.) Specifically Petitioner alleges that his counsel was ineffective for failing to argue, pursuant to United States Sentencing Guideline § 5G1.3(a),*fn1 that his state parole revocation sentence should be served first, before his federal sentence. (Id. at 14.) Petitioner avers that he informed counsel that a "nine month parole hit would be issued due to the [federal] offense." (Id.)
In response, the Government argues that Petitioner's reliance on United States Sentencing Guideline § 5G1.3(a) is misplaced, as that subsection discusses the situation where a defendant commits an offense before commencing service of an already imposed term of imprisonment, whereas here, the State Board of Probation and Parole had not yet imposed a sentence on Petitioner. (Doc. No. 502 at 6.) The Government further argues that Petitioner cannot meet the second prong of the Strickland test because it is unlikely that the Court would have imposed a concurrent sentence in this case, given the presumption against concurrent sentences. (Id. at 8.)
On July 22, 2011, Petitioner filed a reply to the Government's response, asking the Court to schedule an evidentiary hearing. (Doc. No. 505.) Petitioner argues that the issue is not whether the State Board of Probation and Parole had imposed its sentence, but rather whether Petitioner's counsel's performance fell below an objective reasonableness standard. (Id.)
Under the first Strickland prong, Petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Jermyn, 266 F.3d at 282 (citing Strickland, 466 U.S. at 688). The Court finds that trial counsel's failure to raise the § 5G1.3, "Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment," issue at sentencing does not fall below an objective standard of reasonableness. Because Petitioner had not been sentenced for his state parole revocation at the time of the federal sentencing, § 5G1.3 does not apply. See Sloan v. United States, No. 05-302, 2006 WL 1453122, at *4 (W.D. Pa. May 25, 2006) ("Here, subsections 5G1.3(a), (b) and (c) do not apply because petitioner had yet to be convicted or sentenced for these state charges, and therefore was not yet serving a "term of imprisonment" for these charges, at the time of federal sentencing."); Denson v. United States, No. 06-75, 2011 WL 1585327, at *5 (W.D. Pa. April 26, 2011). Accordingly, Petitioner cannot satisfy the first prong of the Strickland test.
Moreover, the Court finds that Petitioner fails to satisfy the prejudice prong of the Srickland test. Here, the outcome would not likely have been any different had Petitioner's counsel raised a § 5G1.3 argument. As the Government points out, the Third Circuit in United States v. Randolph recognized that there is a split among the courts of appeals as to whether a federal district court may order a sentence to run consecutively or concurrently to an unimposed state court sentence, but did not resolve the issue. 80 F. App'x 190, 195 (3d Cir. 2003); see also Sloan, 2006 WL 1453122, at *4; Denson, 2011 WL 1585327, at *5. This uncertainty in the law makes Petitioner's claimed prejudice entirely speculative, especially given the policy considerations favoring consecutive sentences for parole violations. See U.S.S.G. § 7B1.3(f) ("Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis ...