The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is defendant Thomas D. Jones' motion pursuant to 28 U.S.C. § 2255. The motion has been fully briefed and is ripe for disposition.
The court adopts the procedural history as set forth in the Government's responsive brief (doc. 508) and as set forth below.
On November 8, 2006, a two-count Indictment was returned by a grand jury in Harrisburg, PA charging Jones in Count I with the unlawful distribution and possession with the intent to distribute 50 grams or more of crack cocaine, as well as cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1). Count II of the Indictment was a forfeiture count.
On May 9, 2007, a seven-count Superseding Indictment was returned by a grand jury in Harrisburg, PA, charging Jones and four other named individuals again with the unlawful distribution and possession with the intent to distribute 50 grams or more of crack cocaine, as well as cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1). Jones and each of the other defendants were named individually in Counts I through VI. Count VI of the Indictment charged all with conspiring to engage in that same conduct in violation of 21 U.S.C. § 846. Count VII of the Indictment was a forfeiture count.
A second Superseding Indictment was returned by a grand jury in Harrisburg, Pennsylvania, on October 17, 2007. Corby Bennett was added to the indictment and the charge against him individually was Count VI. Bennett was also added to the conspiracy count which became Count VII. The forfeiture count became Count VIII.
On April 10, 2008, the United States filed an Information to Establish Prior Convictions Pursuant to 21 U.S.C. § 851. This put Jones on notice that, if he were convicted of drug distribution charges or criminal conspiracy, the government would seek an enhanced sentence of life imprisonment based on the enumerated prior convictions.
On October 6, 2008, Jones pled guilty to a four-count Superseding Information that was filed that same day. Each count charged Jones with using a communication facility to facilitate the distribution of 50 grams or more of crack cocaine. Each count referred to a discrete period of time and all were alleged to be in violation of 21 U.S.C. § of 21 U.S.C. § 843(b). The guilty pleas were entered pursuant to a plea agreement between Jones and the United States, the terms of which called for the government to recommend a two-level reduction for acceptance of responsibility and that the maximum sentence allowable, that is, 16 years, be imposed by the court. The plea agreement was a conditional one that allowed Jones to appeal the district court's denial of certain pretrial motions.
A pre-sentence investigation report was prepared by the Probation Office. Jones was determined to be a career offender so his criminal history category was VI. The base offense level was determined to be 38 as the probation officer determined that the amount of crack cocaine involved was over 40 kilograms. Jones was given credit for two levels for acceptance of responsibility so his total offense level was 36. Based upon a total offense level of 36 and a criminal history category VI, the custody range was 324 - 405 months. However, because the statutorily authorized maximum sentence was 16 years (192 months), the advisory guideline range was the maximum of 192 months. Jones objected to the guideline calculation and argued that the amount of crack cocaine involved was a total of 200 grams.
Jones appeared for sentencing on January 29, 2009. The court adopted the pre-sentence investigation report without change and imposed the sentence of 192 months, which was the guideline sentencing range because the combined statutory maximum penalty was 16 years.
Jones appealed to the United States Court of Appeals for the Third Circuit which, by Opinion and Order, affirmed his conviction and sentence on November 8, 2010. Jones timely filed the present motion pursuant to 28 U.S.C. § 2255.
Jones claims that his trial counsel and appellate counsel were incompetent. Jones' allegations are that (1) his speedy trial rights were violated, necessitating the dismissal of the charges; (2) his sentence was disproportionate to those of his co-defendants; (3) counsel was ineffective in the plea negotiation process; (4) counsel failed to move to dismiss the indictment due to prosecutorial misconduct before the grand jury; (5) counsel rendered ineffective assistance during the sentencing process; and (6)*fn1 appellate counsel rendered ineffective assistance.
A. Incompetency 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 ...