The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is Antwoyne Neal's motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 499). The motion has been briefed and is ripe for disposition.
Neal raises issues of incompetency of counsel as to the following: (1) the amount of drugs ultimately attributed to him; and (2) the failure to argue against an enhancement as to a leadership role in the offense. A review of the record and transcripts of the change of plea and sentencing proceedings, as well as the opinion of the Court of Appeals for the Third Circuit, conclusively show that Neal is not entitled to relief. Thus, for the reasons set forth below, this court will deny the requested relief without a hearing. United States v. Nahodl, 36 F.3d 323, 326 (3d Cir. 1994).
II. Incompetency of Counsel
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 (ed cir. 2005). With the above precepts in mind, Neal's claims will be addressed.
B. Amount of Drugs Attributed to Neal
Neal claims that his counsel "told him that [he] was pleading guilty to 150-200 grams of cocaine base," however, an additional five kilograms of powder cocaine was calculated into the determination of his offense level. (Doc. 500 at pp. 2-3.) Neal claims he knew nothing about the five kilograms of cocaine base attributed to him. (Id.)
Neal further alleges that counsel advised him the statutory maximum of 20 years would not be given to him, and that his guideline range would be 32 with a three-level reduction for acceptance of responsibility, for a guideline range of 29, a criminal history of IV, resulting in a sentencing range of 121 to 151 months. (Doc. 500 at p. 3.) Neal received a sentence of 168 months.
The following excerpts from the change of plea proceeding dispute Neal's allegations:
MR. BEHE: The United States has reserved to itself the right to make a sentencing recommendation that it deems appropriate including up to the maximum term of imprisonment that is allowable under law which would be in this case a term of imprisonment of up to 20 years.
The parties have agreed to make a non-binding recommendation to the Court concerning drug weights.
And in particular with regards to crack cocaine, the parties have agreed to make a non-binding recommendation that the amount is at least 150 grams but less than 500 grams of cocaine base; and with regards to cocaine hydrochloride, that the amount in question is 5 kilograms. (Transcript of Change of Plea Proceeding ("Tr. COP"), Doc. 514, at p. 7.)
THE COURT: Have there been any promises made to your by anyone else that have not been set forth in this written plea agreement?
THE DEFENDANT: No, ma'am.
THE COURT: Has anyone promised you what your ...