The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is Defendant Joseph Jamene Moore's motion to vacate a judgment of conviction pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel. The motion has been briefed*fn1 and is ripe for disposition. The procedural history and background facts are adequately set forth in the Government's brief in opposition (doc. 287) and will not be repeated herein.
A. Ineffective Assistance of Counsel Standard
To prevail on a claim of ineffective assistance of counsel, a petitioner must establish that (1) the performance of trial counsel fell below an objective standard of reasonableness, and (2) the performance of counsel unfairly prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 691 (1984). "Both Strickland prongs must be satisfied." George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001) (citing United States v. Nino, 878 F.2d 101, 104 (3d Cir. 1989).
The first Strickland prong requires a defendant to "establish . . . that counsel's performance was deficient." Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001.) Proving a deficiency in conduct "requires showing that counsel was not functioning as 'counsel' guaranteed by the Sixth Amendment." Id. (quoting Strickland, 466 U.S. at 687) (internal quotations omitted). "In assessing counsel's performance, 'every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.' " Id. "That is to say, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (quoting Strickland, 466 U.S. at 689)). It is well settled that the benchmark for judging any claim of ineffectiveness of counsel is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.
The second prong of Strickland requires a defendant to show that counsel's performance unfairly prejudiced the defendant, meaning that counsel's errors were so serious as to deprive the defendant of a trial whose result is reliable. Id. It is not enough to show that the error had some conceivable effect on the outcome of the proceeding, for virtually every act or omission would meet such a test. Id. Rather, the defendant must show there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Id. at 694. A reasonable probability is sufficient to undermine confidence in the outcome of the trial. Id. Effectiveness of counsel applies to advice given by counsel during guilty plea discussions. Hill v. Lockhart, 474 U.S. 52, 58 (1985); United States v. Booth, 432 F.3d 542, 547 (3d Cir. 2005).
Moore alleges that the Government had exculpatory documents in its possession which it failed to turn over to him pretrial and that counsel was ineffective by not seeking a new trial when this document came into Moore's possession. The document in question is a DEA-6 memorandum which contains a paragraph summarizing an interview with a confidential informant who had contact with Moore's co-defendant, Carlton Easter. Carlton Easter is reported to have told the confidential informant the following:
Joe Moore was with Carlton Easter and Jamel Easter during the deal, but was just there as a "prop." . . . Moore knew what was going on but was not part of the actual deal. . . . . Moore sold crack cocaine for Carlton Easter and was also on the "Harrisburg Guns and Drug Video." . . . Victor Patterson, Jr., was at the deal for protection and had a firearm. . . . [T]he deal was set up by Jamel Easter with a "guy from Philly," and the money belonged to Carlson Easter. (Doc. 281, Attachment A.)
Moore claims this information is Brady material and failure to turn this over is a violation of his due process rights pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The Government notes that to constitute a Brady violation, this evidence must be exculpatory, (doc. 287 at p. 6), and states that the DEA 6 memorandum is not exculpatory but, in fact, corresponds to the Government's theory of the case. That theory is that Moore, an occupant in the car when the drug transaction occurred, was an aider and abettor in the transaction. (Doc. 287 at p. 6.) In fact, in its opinion addressing Moore's direct appeal, the Third Circuit Court of Appeals stated that "Moore's role furthering the goal of the conspiracy was active not passive and it is clear that the evidence supported his conspiracy conviction." (Slip op. 09-2526, March 9, 2010, doc. 257.) The exculpatory evidence must be of such quality that it "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. 419, 435 (1995).
In addition, Moore claims that his attorney was ineffective for failing to file a motion to sever this case from Carlton Easter so that he could have had the opportunity to call Carlton Easter as a witness. The Government responded to this argument as follows:
[T]he government would have opposed any such motion to sever. Even if Moore were to have successfully severed his case from Carlton Easter's, Carlton Easter would still have had his Fifth Amendment right to remain silent at Moore's trial. Considering that Carlton Easter's defense at trial was that he was completely innocent of these offenses, it is unlikely that Carlton Easter would have consented to waive this right and testify under oath at a separate proceeding that he was guilty. Thus, Moore's claim that his trial would have been ...