The opinion of the court was delivered by: Tucker, J.
Presently before this Court is Petitioner Rodney Smith's ("Smith") Habeas Corpus Petition to Vacate/Set Aside/Correct Sentence Pursuant to U.S.C. § 2255 (Doc. 77) , and the Government's Memorandum in Opposition thereto (Doc. 81).*fn1 Petitioner claims ineffective assistance of trial, post-trial and appellate counsel.
This Court will deny Petitioner's Habeas Corpus Motion because Petitioner's ineffective assistance of counsel argument does not satisfy the standard of Strickland v. Washington, 466 U.S. 668, 687 (1984).
On March 20, 2007, a federal grand jury in the Eastern District of Pennsylvania indicted Smith of possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), in connection with an incident that occurred on January 4, 2005.
On August 23, 2007, the federal grand jury returned a superseding indictment which included Count One from the original indictment, and an additional count of possession of two firearms and ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), in connection with an incident that occurred on May 4, 2007.
On February 6, 2008, after a three-day trial, a jury verdict was returned. The jury found Smith guilty on both counts. On May 15, 2008, Smith's sentencing hearing was held. At the hearing, the Court determined that Smith's total offense level was 40, and that he was in a criminal category of VI, which led to an advisory guideline range of 360 months to life imprisonment. Ultimately, the Court followed the advisory guideline, and sentenced Smith to 360 months, five years of supervised release, a fine of $5,000, and a $300 special assessment fee. Smith filed a timely appeal. The Third Circuit affirmed both the conviction and sentence. United States v. Smith, No. 08-2468 (3d Cir. Jan. 12, 2010) (unrep. mem. op.).
Presently before this Court is Smith's timely Habeas Corpus Motion under 28 U.S.C. § 2255, filed on December 29, 2010.
This Court will deny Petitioner's Habeas Corpus Motion. Petitioner has failed to prove ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Court sets forth below solely the facts that are relevant to Petitioner's claims.
A. Effective Trial and Appellate Counsel
Mr. Smith alleges that he received ineffective assistance of trial counsel from Giovanni Campbell, Esq., his trial attorney, and his appellate counsel, David Rudenstein, Esq., due to the following: (1) failure to present the argument that the Government provided insufficient elements, or predicate convictions, in the superseding indictment; (2) erroneously withdrawing an objection to the Section 924(e) charge against Petitioner, specifically concerning Petitioner's 1979 prior conviction, without first having the Government prove their case; and (3) failure to object and/or file a pretrial motion concerning Petitioner's convictions predating the Sentencing Reform Act of 1984. However, the Government maintains, and this Court agrees, that Mr. Smith has failed to satisfy the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), making it appropriate for the Court to dismiss Smith's motion, and deny a certificate of appealability. The Court discusses each allegation in turn below.
In Strickland, the SupremeCourt of the United States held that, in order for a defendant to prove ineffective assistance of counsel, he must satisfy a two-part test. Id. at 687. First, the defendant must show that his counsel's performance was deficient such that the attorney was not functioning as is required by the Sixth Amendment right to counsel. Id. Second, the deficient performance ...