The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
MEMORANDUM OPINION AND ORDER CONTI, District Judge
Pending before the court is a motion to vacate, set aside, or correct
sentence by a person in federal custody pursuant to 28 U.S.C. § 2255
(ECF No. 953) filed by petitioner Daniel Keith Matthews*fn1
("Matthews" or "petitioner"). In a memorandum opinion dated
August 27, 2012, the court denied petitioner's motion to vacate, set
aside, or correct sentence by a person in federal custody in all
respects except for the claim that petitioner's trial counsel, Martha
Bailor ("Bailor"), was ineffective because she failed to advise him
that if the government filed prior to trial a notice of his prior drug
conviction pursuant to 21 U.S.C. § 851 (the "851 information"), he
faced a mandatory minimum term of imprisonment of 120 months. (ECF No.
1021 at 11-10.) A ruling on the sole remaining issue raised by
petitioner's motion was reserved until after a hearing was held. (Id.)
On December 18, 2012, the court held a hearing with respect to the remaining issue raised by petitioner's motion. Bailor was deceased at the time of the hearing, and thus, the record could not reflect her recollection of the events in issue. Petitioner, however, testified about those events. Given that situation, the court found that Bailor's failure to inform petitioner about the implications of the government's filing a § 851 information was deficient representation. (H.T. 12/18/12 (ECF No. 1067) at 99, 101.) The court deferred ruling on whether Bailor's deficient representation prejudiced petitioner until after the parties submitted supplemental briefs addressing the issue. (Id. at 101.)
After reviewing petitioner's motion to vacate, set aside, or correct sentence by a person in federal custody, the government's brief in opposition (ECF No. 970), the evidence presented at the hearing, and the supplemental briefs submitted by the parties (ECF Nos. 1062, 1063), the court will deny petitioner's motion because he did not establish prejudice.
On August 5, 2004, in a superseding indictment, Matthews, Larry Lewis Ferguson ("Ferguson"), Michelle Harris ("Harris"), John C. Steele ("Steele"), Roscoe B. Thompson ("Thompson"), and others were jointly charged in count one with conspiracy to possess and distribute more than 100 grams of a mixture or substance containing a detectable amount of heroin from November 20, 2002 to February 8, 2003, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(i). (ECF No. 354.) Petitioner was also separately charged in count sixteen with possession with intent to distribute and distribution of a quantity of heroin on or about January 11, 2003, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Id. While ten of petitioner's co-defendants, including Harris and Steele, chose to cooperate and pleaded guilty to the conspiracy count, petitioner, Ferguson and Thompson went to trial before a jury on the counts in which they were charged. (ECF No. 970 at 2.)
On May 2, 2005, prior to jury selection, the government filed the § 851 information with respect to petitioner. By reason of that filing, the previous state drug conviction would be used, if he was convicted of the pending charges against him, to increase the statutory mandatory minimum term of imprisonment from five years to ten years. (ECF No. 456.) The initial trial, which began on May 10, 2005, ended in a mistrial due to juror misconduct, (see ECF No. 492), and all three defendants were retried beginning on January 12, 2006.
On March 2, 2006, after all the evidence was presented, the jury found petitioner guilty of count sixteen and all three defendants guilty of count one. (ECF No. 644.) Following the verdict, petitioner filed pro se Rule 29 and Rule 33 motions, which were denied by the court as untimely on September 8, 2006. (ECF No. 778.) Petitioner's sentencing was scheduled for September 29, 2006. Id. After September 8, 2006 and prior to sentencing, petitioner requested new counsel to replace Bailor. (ECF No. 782.) On September 18, 2006, Bailor filed a motion for leave to withdraw as counsel. (ECF No. 784.) The court held a hearing with respect to petitioner's motion for new counsel and Bailor's motion to withdraw as counsel. The court granted both motions. On October 2, 2005, Sally A. Frick ("Frick") was appointed as petitioner's counsel. (ECF No. 797.) Frick prepared the defendant's Position with Respect to Presentence Investigation Report, which she filed on January 5, 2007. (See ECF No. 862.) Petitioner continued to file numerous pro se motions with the court. (See ECF Nos. 809, 843, 849, 855, 856, 860, and 861.) Each pro se motion was denied without prejudice by the court because he was represented by Frick, who, among other things, could address the matters raised by filing motions on his behalf or raising arguments at the sentencing hearing set for January 17, 2007.
(ECF No. 866.) On that date, the court sentenced petitioner to 120 months of imprisonment to be followed by eight years of supervised release. (See ECF No. 867.) The sentence was the statutory minimum sentence for a violation of 21 U.S.C. § 841(b)(1)(B) because prior to trial the government filed the § 851 information providing the court notice of petitioner's prior felony drug offense. (ECF No. 970 at 4.) The mandatory minimum term of imprisonment was greater than the range which would have been determined under the federal sentencing guidelines had the government not filed the § 851 information. The lower guidelines range of imprisonment was 70 to 87 months based upon petitioner's base offense level and criminal history category without taking into consideration the filing of the § 851 information. (See id.)
Petitioner appealed his conviction, arguing, among other things, that the evidence was insufficient to support his conviction for participation in the heroin conspiracy. United States v. Ferguson, 394 F. App'x 873, 878 (3d Cir. 2010). In an opinion issued on September 21, 2010, the Court of Appeals for the Third Circuit affirmed the conviction, finding that the "evidence presented at trial was more than sufficient to permit a rational trier of fact to conclude that Petitioner shared a unity of purpose with the other conspirators to distribute heroin and entered into an agreement to further that objective." Id. at 878.
Petitioner continued to file motions pro se (see ECF Nos. 893, 923, 937, 938, and 945), the last of which was filed on December 1, 2010 to "vacate, set aside or correct the sentence" pursuant to 28 U.S.C. § 2255. Because "Matthews [sic] might not have been aware of the potential legal consequences when he filed the Motion to Vacate, the Motion for Trial, Supplement and Amended Motion," this court delayed consideration of his motions and provided him with the option, among others, to withdraw the motion and file an inclusive § 2255 motion. (ECF No. 946); see United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999). Petitioner withdrew the previous motions, (see ECF No. 952), and filed one all-inclusive § 2255 petition on December 27, 2010. (ECF No. 953). This motion was supplemented three days later with a Motion for New Trial and a Motion for Sentencing Transcripts and DEA Surveillance Reports. (ECF No. 954.)
In an order dated August 27, 2012, the court denied in part petitioner's motion to vacate, set aside, or correct sentence by a person in federal custody, reserving decision with respect to whether Bailor was ineffective for failing to advise petitioner that if the government filed prior to trial a notice of his prior drug conviction, he faced a mandatory minimum term of imprisonment of 120 months.*fn2 (ECF No. 1021 at 11-10.) Petitioner was appointed counsel to represent him in connection with his motion. (Id. at 25.)
On December 18, 2012, the court held an evidentiary hearing with respect to the remaining issue raised by petitioner's motion. Petitioner, Assistant United States Attorney Troy Rivetti ("Rivetti"), and Frick testified. The government and petitioner each entered exhibits into evidence. As noted, the testimony of petitioner could not be contradicted by Bailor during the hearing on December 18, 2012 because Bailor had died prior to the hearing. The court on the basis of the record found that Bailor's performance was deficient because she did not inform petitioner about the impact the filing of the § 851 information could have on his ultimate sentence. (H.T. 12/18/12 (ECF No. 1067) at 99, 101.) The parties were ordered to file supplemental briefs with respect to whether petitioner was prejudiced by Bailor's deficient representation. On January 3, 2013, the parties each filed a supplemental brief with the court.
Based upon the foregoing, the sole remaining issue for the court to decide is whether petitioner was prejudiced by Bailor's deficient representation.
On this 12th day of April 2013, the court makes the following findings of fact and conclusions of law with respect to whether petitioner was prejudiced by Bailor's ineffective assistance of counsel.
A district court is required to hold an evidentiary hearing on a motion to vacate sentence filed pursuant to § 2255 unless the motion, files, and records of the case show conclusively that the movant is not entitled to relief. 28 U.S.C. § 2255 ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). An evidentiary hearing is not required, however, if the court determines that the motion, files, and records of the case conclusively support that the motion should be denied as a matter of law. Id. With this in mind, the "district court must 'accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'" Johnson v. United States, 294 F. App'x 709, 710 (3d Cir. 2008) (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)). The district court, however, without further investigation may dispose of "vague and conclusory allegations contained in a § 2255 petition." Id.
Under § 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside or correct the sentence upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). In Hill v. United States, 368 U.S. 424 (1962), the Supreme Court of the United States read the statute as stating four grounds upon which relief can be claimed:
(1) "that the sentence was imposed in violation of the Constitution or laws of the United States," (2) "that the court was without jurisdiction to impose such sentence," (3) "that the sentence was in excess of the maximum authorized by law," and (4) that the sentence "is otherwise subject to collateral attack."
Id. at 426-27 (quoting 28 U.S.C. § 2255(a)).
The statute provides as a remedy for a sentence imposed in violation of law that "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). For this remedy to be appropriate for a claim of ineffective assistance of counsel, there must be a "showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984).
The burden is on the petitioner to establish such a claim and requires a petitioner to prove: (1) deficient representation, meaning that counsel's representation fell below an objective standard of reasonableness, and (2) prejudice, meaning there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687, 694.
1. Petitioner's initial appearance on the charges contained in the indictment was February 20, 2003. (H.T. 12/18/12 (ECF No. 1067) at 20-21; ECF No. 8.)
2. Bailor first met with petitioner with respect to those charges while he was incarcerated prior to his arraignment, which took place on February 27, 2003. (H.T. 12/18/12 (ECF No. 1067) at 21.) During that meeting, Bailor gave petitioner a business card that listed her telephone number and fax number. (Id. at 5.) The card did not contain her business address. (Id.)
3. On March 3, 2003, petitioner was released from custody and placed on house arrest. (ECF No. 61; H.T. 12/18/12 (ECF No. 1067) at 15.)
4. A superseding indictment was filed in this case on August 5, 2004. (Id. at 21. ECF No. 354.) Bailor represented petitioner at the arraignment on the charges contained in the superseding indictment, which took place on August 26, 2004. (H.T. 12/18/12 (ECF No. 1067) at 22.)
5. At the initial appearance on February 20, 2003, the arraignment on February 27, 2003, and the arraignment on August 26, 2004, Rivetti, the prosecutor assigned to petitioner's case, in open court explained the possible penalties petitioner was facing with respect to the charges filed against him. (Id. at 52.) Rivetti's explanation of penalties included the penalties for a first-time offender and the penalties for a defendant with a prior felony drug conviction, which included the increase in the statutory mandatory minimum term of imprisonment from five years to ten years if defendant had a prior felony drug conviction. (Id. 52-53.) Rivetti testified that at an arraignment, magistrate judges in the Western District of Pennsylvania, where petitioner was arraigned, require an explanation of the possible penalties a defendant faces and that the possible penalties are also set forth in an indictment memorandum filed with the court. (Id. at 53.)
6. Rivetti testified that there was no indication that petitioner was confused about the possible penalties he faced if convicted of the charges filed against him in this case. (Id. at 56.)
7. On November 17, 2004, Rivetti sent a letter to Bailor and counsel for five other defendants who were indicted with petitioner. (Gov't Ex. 1; H.T. 12/18/12 (ECF No. 1067) at 36.) The letter provided, among other things:
Finally, we remain open to the possibility of resolving this case by means of a plea agreement. Due to the various pretrial deadlines set forth in the Court's November 10, 2004 Case Management Order, we are setting Tuesday, December 7, 2004, as the deadline for reaching a plea agreement ...