HARVEY BARTLE, District Judge.
Before the court is the timely motion of defendant William Johnson ("Johnson") to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
Johnson was found guilty by a jury on October 4, 2007 of: conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (Count One); violent crimes in aid of racketeering ("VICAR") in violation of 18 U.S.C. § 1959(a)(3) (Count Four); possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count Six); and two counts of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Counts Seven and Eight). In response to a special interrogatory, the jury determined that Johnson conspired to distribute over 500 grams of crystal methamphetamine.
Johnson was initially sentenced on April 11, 2008. The court found that the combined adjusted offense level under the sentencing guidelines was level 39. The court determined that Johnson was a career offender, and, therefore, he had a criminal history category of VI. This determination was based on Johnson's prior convictions of aggravated assault and simple assault. After a one-level departure for over-representation of his criminal history, the sentencing guidelines prescribed a term of imprisonment ranging from 360 months to life. The court sentenced Johnson to 300 months on Counts One, Four, Seven, and Eight, followed by a consecutive 60 months on Count Six.
Johnson appealed to the Third Circuit, raising a number of issues. The Court of Appeals rejected all but one. It determined that Johnson was not a career offender and ordered a new sentencing hearing on that issue. On August 31, 2010, Johnson was re-sentenced by this court to 348 months imprisonment, one year lower than his initial sentence. The court credited Johnson for obtaining a GED in prison. The sentence also included a term of supervised release of five years, forfeiture of specific tangible property, a special assessment of $500, and joint and several forfeiture with his co-defendants of $6 million. Johnson's subsequent appeal was rejected. United States v. Johnson, 432 F.Appx. 86 (3d Cir. 2011). His petition for a writ of certiorari was denied by the Supreme Court on February 27, 2012. United States v. Johnson , 132 S.Ct. 1649 (2012).
Johnson alleges in his § 2255 motion that he was deprived of his Sixth Amendment right to effective assistance of counsel through a series of errors made by his attorney during the trial. His motion is based on the grounds that his trial counsel was ineffective: (1) in not conducting a pre-trial investigation of law and facts relevant to the government's Title III wiretap affidavits; (2) in failing to provide Johnson with information about pursuing an open guilty plea or a plea bargain in lieu of proceeding to trial; (3) in not demanding that Johnson be confronted with witnesses against him; (4) in not requesting that a voir-dire of the jury take place during trial after one of the jurors interrupted the proceedings; (5) in not conducting a pre-trial investigation of certain key witnesses and not calling those witnesses to testify; and (6) in allowing the court to determine forfeiture instead of the jury.
On August 16, 2013, the court held an evidentiary hearing limited to issues involving plea discussions among Johnson, his trial counsel, and the government, including whether Johnson's trial counsel failed to advise him that he could enter a guilty plea without a plea agreement. At this hearing, Noah Gorson, Andrea Foulkes, Kishan Nair, and Johnson testified. Noah Gorson was Johnson's trial counsel, and Andrea Foulkes and Kishan Nair were the prosecutors who tried the case.
The underlying facts, in the light most favorable to the government, are as follows. Between January 2003 and June 2006, Johnson's co-defendant John Napoli ("Napoli") organized and led a racketeering enterprise, known as the Pennsylvania Chapter of the Breed Motorcycle Gang ("Breed"). This organization, located in Bristol, Pennsylvania, was a hierarchical motorcycle gang with a strict authoritarian leadership. The Breed gang trafficked 125 pounds of crystal methamphetamine over that three-year period and engaged in several violent acts in furtherance of the enterprise.
From mid-2005 through June 2006, the Bureau of Narcotics Investigation in the Office of the Pennsylvania Attorney General investigated the Breed. The investigation included state court-authorized wiretaps of two telephones used by Johnson and one telephone used by Napoli from April 13, 2006 and June 13, 2006.
From approximately March 2006 through June 2006, Johnson became the principal supplier of methamphetamine to the Breed. He obtained approximately 22 pounds of crystal methamphetamine from his drug supplier, Robert Traverse, in that four-month period. Napoli directed that the methamphetamine from Johnson be distributed to numerous mid-level distributors inside the Breed.
To protect his methamphetamine supplies, Johnson, who was a previously convicted felon, kept firearms and ammunition at his two residences, which were located at 3632 Morrell Street and 4648 Bergen Street in Philadelphia. He also stored drugs and drug proceeds at these residences. On June 5, 2006, during a search at 3632 Morrell Street, agents found a Kel-Tec 9mm handgun loaded with 13 rounds of ammunition within reach of approximately five pounds of crystal methamphetamine. At 4648 Bergen Street, agents discovered a 12-gauge pump-action shotgun next to Johnson's Breed "colors" in the bedroom closet and a loaded.44 caliber Charter Arms revolver in a bedroom drawer.
During the state investigation, confidential informant (later, cooperating witness) David Serviolo ("Serviolo") made controlled small drug purchases from Johnson. On one occasion, in March 2006, Serviolo arrived at 3632 Morrell Street and saw Johnson with a handgun in one hand and putting cash into a portable safe with the other. On May 11, 2006, Johnson asked Serviolo to help him move several firearms and approximately one pound of methamphetamine from his Morrell Street residence to his Bergen Street residence. In addition, cooperating witness Eric Loebsack ("Loebsack") observed Johnson with a firearm when he picked Johnson up at his Morrell Street residence for a "Hooters Bike Night" event. After that event, Loebsack picked up methamphetamine from Johnson's Morrell Street residence.
Within the Breed gang, violence was frequently used to ensure loyalty and compliance with orders from leadership. On November 24, 2005, along with other Breed members, Napoli, Johnson, and Christopher Quattrocchi ("Quattrocchi"), a cooperating government witness, brutally beat past Breed president James Graber ("Graber") based on Napoli's belief that Graber had stolen money from a game machine in the gang's clubhouse. This organized assault and battery was formally approved by the "Breed Executive Board" a week in advance. During the beating, Quattrocchi pushed Graber down from behind, Johnson stomped on Graber's chest "like an accordion, " and Napoli and Johnson stabbed and beat Graber with pool sticks and other items. The beating resulted in Graber spending four days in the intensive care unit of the hospital with damage to his back, head, liver, and spleen.
Co-defendants Napoli, Johnson, and Thomas Heilman ("Heilman") were tried together during a twelve-day jury trial. Johnson was represented by Noah Gorson at trial and his first sentencing hearing. On his appeal, his second sentencing hearing, and for this motion, he has been represented by Stephen P. Patrizio. The government called 35 civilian and law enforcement witnesses, including eight cooperating coconspirators who testified to Johnson's involvement in drug distribution as well as the Breed's drug financing and violent methods.
II. Johnson alleges in his § 2255 motion and memorandum of law that he was deprived of his Sixth Amendment right to effective assistance of counsel as a result of six errors made by his counsel during trial and sentencing. Under the Strickland standard for constitutional ineffective assistance of counsel, Johnson bears the burden of proving that: (1) his counsel's performance was deficient; and (2) he suffered prejudice as a result. Strickland v. Washington , 466 U.S. 668, 687-96 (1984); United States v. Nino , 878 F.2d 101, 103 (3d Cir. 1989). Our scrutiny of counsel's performance is highly deferential in that we presume counsel's actions were undertaken in accordance with professional standards and as part of a "sound trial strategy." Strickland , 466 U.S. at 689 (quoting Michel v. Louisiana , 350 U.S. 91, 101 (1955)).
The first prong requires that "[counsel's] performance was, under all the circumstances, unreasonable under prevailing professional norms." United States v. Day , 969 F.2d 39, 42 (3d Cir. 1992). Under the second prong, Johnson must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is one that is "sufficient to undermine confidence in the outcome." Id . When ruling on a § 2255 motion, the court may address the prejudice prong first ...