The opinion of the court was delivered by: Judge Munley
Before the court is Petitioner Adolphus McNeil's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. This matter is fully briefed and ripe for disposition.
Petitioner Adolphus McNeil (hereinafter "petitioner") was indicted on six criminal counts by a grand jury in the United States Court for the Middle District of Pennsylvania on April 22, 2008. (Doc. 13 in 3:08cr161). Count I accused petitioner of engaging in a conspiracy to distribute and possession with intent to distribute in excess of one hundred kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Count II charged petitioner with violating 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 by possessing marijuana with intent to distribute. Count III alleges that petitioner used a communications facility in the commission of a felony under the Controlled Substances Act in violation of 21 U.S.C. § 843(b). Count IV charged petitioner with possession of a firearm while being an unlawful user of a controlled substance in violation of 18 U.S.C. § 922(g)(3). Count V contended that petitioner violated 18 U.S.C. § 924(c) and 18 U.S.C. § 2 by using a firearm in furtherance of drug trafficking crimes. Count VI sought forfeiture of property used in the alleged crimes pursuant to 21 U.S.C. § 853.
In January 2009, a grand jury charged petitioner in a superseding indictment with the same crimes, but the date of the conspiracy was expanded to include the time between October 2005 and April 12, 2008. (Doc. 52 in 3:08cr161). A second superseding indictment was entered on May 19, 2009, and this indictment changed the conspiracy dates to "[b]eginning in or about January of 1996, and continuing to on or about April 12, 2008 . . . ." (Doc. 75 in 3:08cr161). On May 28, 2009, petitioner was arraigned and pled not guilty to the second superseding indictment. (Doc. 81 in 3:08cr161).
Petitioner's trial was scheduled for September 29, 2009. (Doc. 83 in 3:08cr161). On September 16, 2009, petitioner, through Attorney Nandakumar Palissery, his counsel at the time, moved to have the indictment dismissed with prejudice based upon an alleged violation of the Speedy Trial Act, 18 U.S.C. § 3161, et seq. (Doc. 97 in 3:08cr161). On September 24, the court granted petitioner's motion to dismiss and dismissed the indictment without prejudice. (Doc. 104 in 3:09cr161).
On October 13, 2009, another grand jury in the United States District Court for the Middle District of Pennsylvania returned a six-count indictment against petitioner. (Doc. 1 in 09cr320).*fn1 This indictment charged petitioner with essentially the same offenses as were contained in the second superseding indictment filed on May 19, 2008. Attorney Hervery B. O. Young of the Federal Public Defenders Office was appointed on November 4, 2009 to represent petitioner with respect to the criminal charges contained in the October 13, 2009 indictment. (Doc. 10). On the same day Attorney Young was appointed to his case, petitioner entered a plea of not guilty to the charges contained in the indictment. (Doc. 11).
In anticipation of trial, Attorney Young filed seven pre-trial motions seeking the following: (1) to suppress statements petitioner made to the authorities; (2) to preclude the testimony of the government's fingerprints expert; (3) for the early disclosure of Jencks Act material; (4) for the disclosure of the identities of the confidential witnesses and the disclosure of any exculpatory evidence; (5) for the disclosure of the government's intention to rely on evidence of prior crimes and bad acts; (6) for the disclosure of the government's expert witness's credentials; and (7) for the suppression of physical evidence allegedly obtained without a valid search warrant. (Docs. 19-23, 33, 48).
In a January 5, 2010 memorandum and order, the court ruled as follows with respect to petitioner's pre-trial motions: (1) an evidentiary hearing was scheduled on January 7, 2010 on petitioner's motion to suppress alleged statements,*fn2 (2) the court granted petitioner's motion to disclose exculpatory evidence and the government's expert witness's credentials, and (3) the court denied the remainder of petitioner's pre-trial motions. (Doc. 41). On January 7, 2010, the court held an evidentiary hearing with respect to the suppression motions, after which the court denied both of petitioner's motions. (See Doc. 89). On January 11, 2010, one day before his trial was scheduled to begin, petitioner sought a continuance. (Doc. 64). The court denied this request, (Doc. 65), and held a three-day jury trial. On January 14, 2010, the jury returned a guilty verdict against petitioner with respect to Counts I and II of the indictment, and the jury found for the government with respect to Count VI--the criminal forfeiture count. (Docs. 80, 81). On April 15, 2010, the court sentenced petitioner to 60 months in prison to be followed by three years of supervised release. (Doc. 97).
Petitioner appealed his conviction to the Third Circuit Court of Appeals. (Doc. 98). Petitioner raised two issues on appeal. First, petitioner contended that this court erred in denying his motion to suppress on the basis that we erroneously determined that he was not in custody. See United States v. McNeil, 416 F. App'x 227, 228 (3d Cir. 2011). Second, petitioner argued that this court abused its discretion by dismissing his original indictment without prejudice. See id. The Third Circuit Court of Appeals affirmed our decisions and denied petitioner's appeal. Id. at 230. Petitioner filed a pro se motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 on February 27, 2012. (Doc. 119). The government filed a brief in opposition to the petition, (Doc. 124); thus, bringing this case to its current posture. Legal Standard
A federal prisoner in custody under the sentence of a federal court
may, within one year from when the judgment becomes final,*fn3
move the sentencing court to "vacate, set aside, or correct"
a sentence "imposed in violation of the Constitution or laws of the
United States." 28 U.S.C. § 2255(a). In a Section 2255 motion, a
federal prisoner may attack his sentence on any of the following
grounds: " that the judgment was rendered without jurisdiction,
or  that the sentence imposed was not authorized by law or otherwise
open to collateral attack, or  that there has been such a denial or
infringement of the Constitutional rights of the prisoner as to render
the judgment vulnerable to collateral attack . . . ." 28 U.S.C. §
Section 2255, however, 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). Rather, Section 2255 permits habeas relief for an error of law or fact constituting a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (citing United States v. Addonizio, 442 U.S. 178, 185 (1979)). If the court determines that the sentence was not authorized by law, was unconstitutional, or otherwise open to collateral attack, the court must either vacate the judgment, resentence the prisoner, or grant the prisoner a new trial as appropriate. See 28 U.S.C. § 2255(b). Conversely, a court may dismiss a Section 2255 motion where the record shows conclusively that the movant is not entitled to relief. United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994).
A prisoner's pro se pleading is construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 32 (3d Cir. 2011). A petitioner is entitled to an evidentiary hearing as to the merits of his claim unless it is clear that he is not entitled to relief.*fn4
Petitioner brings this collateral attack on his sentence of 60 months for his felony conviction under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. Petitioner presents three grounds in support of his assertion that he is being held in violation of the Constitution and laws of the United States. First, petitioner asserts that his Sixth Amendment rights were violated as a result of the ineffective assistance of Attorney Palissery, who represented petitioner with respect to docket number 3:08cr161. (Doc. 119, Pet. Mot. to Vacate at 5). Second, petitioner avers that his Sixth Amendment rights were violated as a result of the ineffective assistance of Attorney Young, who represented petitioner with respect to docket number 3:09cr320. (Id. at 6). Third, petitioner claims that the court abused its discretion when we denied his motion to continue the trial to retain a counsel of his choice. (Id. at 7). The court will address each of petitioner's grounds for relief in turn.
A. Ineffective Assistance of Counsel
The first two grounds for relief listed in petitioner's motion to vacate assert that his Sixth Amendment rights were violated because of the ineffective assistance provided by his attorneys. The Supreme Court has found that "'the right to counsel is the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)). Counsel is ineffective when "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.
To prove that his counsel was deficient at trial or sentencing, a defendant must convince a court of two factors. "First, the defendant must show that counsel's performance was deficient." Id. at 687. Satisfying the first factor requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Substandard lawyering is not enough to obtain relief. In assessing an attorney's performance, courts apply a highly deferential level of scrutiny. See Marshall v. Cathel, 428 F.3d 452, 462 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689). This deference is afforded because "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.
To satisfy the second factor of the Strickland test, "the defendant must show that the deficient performance prejudiced the defense" by demonstrating that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. In other words, "the party claiming ineffective assistance 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Campbell v. Burris, 515 F.3d 172, 184 (3d Cir. 2008) (quoting Strickland, 422 U.S. at 694). "'It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings . . . not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.'" Id. (quoting Strickland, 466 U.S. at 693).
Relief is only available to defendants who make adequate showings with respect to both factors of the Strickland test. See Strickland, 466 U.S. at 686. Accordingly, "'to merit a hearing, a claim for ineffective assistance of counsel, accepting the veracity of its allegations, must satisfy both prongs of the Strickland test, deficient counsel and prejudice to the defense.'" Campbell, 515 F.3d at 183 (quoting Wells v. Petsock, 941 F.2d 253, 559-60 (3d Cir. 1991)).
Petitioner contends that both Attorney Palissery and Attorney Young's performance fell below the minimum standards articulated in Strickland. Petitioner presents three arguments in support of his ineffective assistance claim regarding Attorney Palissery, who represented petitioner with respect to the first indictment (docket number 3:08cr161). Petitioner presents four arguments in support of his ineffective assistance claim regarding Attorney Young, who represented petitioner with respect to the ...