The opinion of the court was delivered by: Judge Conner
Presently before the court is defendant's pro se motion (Doc. 59) to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §
2255.*fn1 Defendant Wade Randall Pine ("Pine")
contends that his attorney provided ineffective assistance of counsel
resulting in a violation of his constitutional rights.*fn2
For the reasons that follow, Pine's motion (Doc. 59) will be
I. Statement of Facts & Procedural History
On May 2, 2007 a federal grand jury returned a two-count criminal indictment charging Pine with offenses related to the possession of child pornography. (Doc. 1). On August 27, 2007, after entering into a plea agreement with the government (Doc. 24), Pine pled guilty to Count 2 of the criminal indictment admitting to possessing in excess of six hundred (600) digital images and video files in the form of films, computer disks, and other material that contained images of child pornography. See 18 U.S.C. §2252A(a)(5)(B) and §2252A(b), (Docs. 29, 51). In his plea agreement, Pine waived any requirement that a jury determine or make findings of fact affecting the sentencing range. (Doc. 24, ¶16).
On March 14, 2008, the district court entered judgment on Count Two of the indictment. (Doc. 46). The court sentenced Pine to 78 months incarceration (a sentence at the low end of the sentencing range), fines and fees of $600, and ten years of supervised release. (Id.) Pine appealed his sentence to the Third Circuit Court of Appeals on March 21, 2008. (Doc. 47). The Third Circuit affirmed the judgment of conviction and sentence on March 30, 2009. United States v. Pine, 318 Fed. App'x 84 (3d Cir. 2009). Pine filed a writ of certiorari to the United States Supreme Court, which was denied on October 13, 2009. On October 12, 2010, Pine timely filed the instant motion (Doc. 55) to vacate, set aside, or correct his sentence pursuant to28 U.S.C. § 2255. The motion has been fully briefed and is ripe for disposition.
A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 is the appropriate vehicle by which federal prisoners challenge the legality of a conviction or sentence. See In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997) (stating that a § 2255 motion is "the usual avenue for federal prisoners seeking to challenge the legality of their confinement"). When a federal prisoner seeks §2255 habeas relief, he must file the motion in the district court where he was convicted and sentenced. See 28 U.S.C. § 2255 (stating that the motion must be filed in "the court which sentenced" the defendant). Where the record affirmatively indicates that a petitioner's § 2255 claim for relief is without merit, the claim may be decided on the record without a hearing. See Virgin Islands v. Nicolas, 759 F.2d 1073, 1075 (3d Cir. 1985).*fn3 In his § 2255 Motion, Pine alleges that he was represented by ineffective counsel, and as a result, his conviction and sentence should be vacated.
A claim of ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a motion, a petitioner must demonstrate that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) the deficient representation was prejudicial. See id. at 687-88. In determining whether counsel has satisfied the objective standard of reasonableness in accordance with the first prong, courts must be highly deferential toward counsel's conduct. See id. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989). Only a "rare claim" of ineffectiveness of counsel should succeed "under the properly deferential standard to be applied in scrutinizing counsel's performance." Id. at 711 (citing Strickland, 466 U.S. at 689-90). Counsel will not be deemed ineffective for failing to raise a meritless claim. United States v. Saunders, 165 F.3d 248, 253 (3d Cir. 1999). To satisfy the prejudice prong, the petitioner must show that, but for counsel's errors, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694. The district court need not carry out its analysis of the two prongs in any particular order, or even to address both prongs of the inquiry if the defendant makes an insufficient showing in one. Id. at 697.
A determination of inadequate assistance of counsel necessarily relies on consideration of the totality of the unique circumstances in each case. United States v. Baynes, 687 F. 2d 659, 665 (3d Cir. 1982). Conclusory allegations are insufficient to entitle a petitioner to relief under § 2255. SeeSepulveda v. United States, 69 F. Supp. 2d 633, 639-40 (D.N.J. 1999) (citing Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621 (1977)).
In the instant matter Pine complains that his attorney provided ineffective assistance by failing to: (1) explain the plea agreement; (2) introduce objections and critical evidence which purportedly would have resulted in a downward variance;
(3) cross-examine or confront witnesses on his behalf; (4) choose competent expert and lay witnesses; and (5) that the cumulative effect of these errors prejudiced him.*fn4
A. Counsel's Alleged Failure to Explain the Plea Agreement
First, Pine alleges that his waiver of a jury determination of facts affecting the guideline range was unknowing and involuntary because his counsel failed to explain the plea agreement to him. (Doc. 61, at 3-4; Doc 67, at 11-12, 13-14). It is well-settled that "[c]riminal defendants may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver." United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008). To confirm that the defendant understands that by his pleading guilty he waives certain rights, the court engages the defendant in a colloquy.See Jells v. Ohio, 498 U.S. 1111, 1113; (1991) (Marshall, J., dissenting). A waiver of rights is enforceable when entered knowingly and voluntarily and enforcement does not effect a miscarriage of justice. SeeMabry, 536 F. 3d at 237. The plea agreement signed by Pine states:
In light of the June 24, 2004 ruling of the Unites States Supreme Court in Blakely v. Washington, the defendant agrees to waive any requirement that a jury determine the sentencing range or make findings of fact affecting the sentencing range under the U.S. sentencing guidelines. The defendant further agrees that the sentencing judge may undertake that function, making all decisions and findings relative to his sentencing range and Criminal History category. (Doc. 24, ¶ 16). The language of the written plea agreement expressly indicates Pine's waiver of jury sentencing and agreement that ...