December 2, 2013
UNITED STATES OF AMERICA
ANDRE WARE JERRY STEVENS
Hon. Jan E. DuBois, Judge
On August 9, 2009, petitioners Andre Ware and Jerry Stevens were convicted of conspiracy to possess with intent to distribute cocaine base (“crack”), possession with intent to distribute cocaine base (“crack”), and possession with intent to distribute cocaine base (“crack”) within 1, 000 feet of a school. Petitioners Ware and Stevens both appealed their convictions to the U.S. Court of Appeals for the Third Circuit, which affirmed both petitioners’ convictions. United States v. Ware, 450 F. App’x 94 (3d Cir. 2011); United States v. Stevens, 450 F. App’x 97 (3d Cir. 2011).
Petitioner Stevens filed the pending Motion to Set Aside, Vacate, or Correct Sentence pursuant to 28 U.S.C. § 2255 on February 8, 2013, and petitioner Ware filed the pending Amended Motion Under 28 U.S.C. § 2255 on April 16, 2013. In their Motions, petitioners argue that their counsel was ineffective for several reasons, many of which overlap. The Court held an evidentiary hearing on petitioners’ ineffectiveness claims on September 24, 2013, during which petitioners withdrew several of their arguments. At the conclusion of the hearing, five claims of ineffective assistance of counsel remained:
1. Failure of counsel for both petitioners to request a lesser-included offense instruction for possession of cocaine base or conspiracy to possess cocaine base (Stevens Ground 3, Ware Ground C);
2. Failure of counsel for both petitioners to call an expert witness on drug packaging, trafficking and usage (Stevens Ground 2, Part of Ware Ground E);
3. Failure of counsel for both petitioners to obtain nighttime pictures of the crime scene or object to the government’s daylight pictures (Ware Ground A, Stevens Ground 5(A));
4. Failure of Ware’s trial counsel argue, at the suppression hearing, that the drugs were inadmissible due to “Forced Abandonment” (Ware Ground D);
5. Failure of counsel for Stevens to request a downward departure at sentencing (Stevens Ground 1).
Petitioner Ware also argues that even if the above errors are not prejudicial in themselves, the cumulative effect was prejudicial. For the reasons set forth below, petitioners’ Motions are denied.
On October 14, 2008, petitioners were charged in a five-count Indictment. Count One charges both petitioners with conspiracy to possess with intent to distribute cocaine base (“crack”), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846 (2006) (amended Oct. 15, 2008).
Count Two charges both petitioners with possession with intent to distribute cocaine base (“crack”), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). Count Three charges both petitioners with possession with intent to distribute cocaine base (“crack”) within 1, 000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 860(a). Count Four charges petitioner Ware with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Count Five charges petitioner Ware with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Petitioners’ jury trial began on August 3, 2009. Petitioner Stevens was represented at trial by Jerome Gamburg, and Petitioner Ware was represented at trial by Joseph Santaguida.Following a three day trial, the jury returned verdicts of guilty on Counts One, Two, and Three, and a verdict of not guilty on Count Four. Petitioner Ware waived a jury trial on Count Five, as to which the Court entered a verdict of not guilty. On November 17, 2009, the Court sentenced Ware to concurrent terms of 128 months’ imprisonment. On December 16, 2009, the Court sentenced Stevens to concurrent terms of 96 months’ imprisonment.
The relevant facts, as adduced at trial, are as follows.
On April 18, 2006, at about 9:00 p.m., officers of the Philadelphia Police Department set up surveillance in the 1200 block of South 17th Street in Philadelphia, Pennsylvania. Trial Tr. 45, 142, Aug. 4, 2009. Officer Charles Myers and Officer Christopher Hulmes were on the roof of a one-story bar, with Officer Myers observing the street and Officer Hulmes relaying information by radio and providing security. Id. at 36-37. Several additional uniformed police officers were stationed several blocks away in order to apprehend drug buyers and the target sellers upon Officer Myers’s signal. Id. at 37.
While watching the street, Officer Myers observed Ware and Stevens speak with an unknown male, who handed Stevens currency. Id. at 40. Ware then retrieved a clear baggie from a compartment on the driver’s side door of a silver Monte Carlo automobile parked nearby and walked over to the unknown male. Id. at 40, 53-54. When he reached the unknown male, Ware removed a small object from the baggie and handed it to him, the unknown male then left the area. Id. Thereafter, Ware returned the baggie to the Monte Carlo. Id.
A short time later, Myers observed a second unknown male approach Stevens, engage in conversation, and hand Stevens currency. Id. at 53. Stevens shouted something to Ware, who retrieved the baggie from the driver’s side-door compartment of the Monte Carlo. Id. Ware removed a small object from the baggie and handed it to the unknown male, who promptly left the area. Id. at 53-54. Ware then put the baggie into his pocket. Id. at 54.
Shortly thereafter, at about 9:35 p.m., a white Ford Explorer pulled up to Stevens and engaged him in conversation. Id. at 55. The Ford drove away, and Stevens yelled to Ware, “It’s hot. They’re around the corner.” Id. Ware and Stevens then began walking away, at which point Myers called in the uniformed backup officers to arrest them. Id. at 56.
As the backup officers approached Stevens and Ware, Officer Myers observed Ware remove a baggie from his pocket and drop it on the sidewalk. Id. at 59-62. After dropping the baggie, Officer Izizarry apprehended Ware and recovered $10 dollars in U.S. currency and the keys to the silver Monte Carlo. Id. at 65-66, 118. Officer Myers then instructed Officer Izizarry as to where the baggie was located, and Izizarry recovered the bag. Id. at 62. As Ware was being apprehended, Officer Donald Lindenmuth secured Stevens farther down the street and recovered $42 from his front pants pocket: one $20 bill, one $10 bill, one $5 bill, and seven $1 bills. Id. at 115, 119.
The clear baggie that Officer Izizarry recovered contained eight packets of cocaine base (“crack”) with a total approximate weight of 1.168 grams and an approximate value of $40. Id. at 175. Officers were unable to apprehend the two unknown men who engaged in transactions with petitioners. Id. at 41-42, 55, 86-87. After obtaining a search warrant, officers searched the car and found a vehicle registration in Ware’s name in the glove compartment, a Pennsylvania driver’s license in the name of Jerry Stevens, a birth certificate in the name of Jerry Stevens, and a loaded .45 caliber Smith & Wesson underneath the driver’s seat. Id. at 155-63.
III. LEGAL STANDARD
The standard for evaluating an ineffective assistance of counsel claim was set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance of counsel, a petitioner must demonstrate that his counsel’s performance (1) “fell below an objective standard of reasonableness” under “prevailing professional norms, ” and (2) that counsel’s deficient performance prejudiced the petitioner. Id. at 687-88, 92.
When assessing the reasonableness of counsel’s performance, the Strickland Court noted that “the difficulties inherent in making the evaluation” necessitate that courts “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Accordingly, a petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. The relevant question remains, however, “not whether counsel’s choices were strategic, but whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). “[E]ven if the presumption is rebutted, a court must still ‘determine whether, in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance.’” Lewis v. Horn, 581 F.3d 92, 114 (3d Cir. 2009) (quoting Strickland, 466 U.S. at 690) (internal quotation marks omitted).
The second prong of Strickland requires that a petitioner “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” is a “probability sufficient to undermine confidence in the outcome.” Id.
1. Failure to request lesser-included offense instructions for simple possession of cocaine base (“crack”) or conspiracy to possess cocaine base (“crack”)
Petitioners argue that trial counsel was ineffective in failing to request a jury instruction on simple possession — a lesser-included offense to the charged offense of possession with intent to distribute. A simple possession instruction was warranted, petitioners argue, given the facts of this case: the quantity of drugs recovered was small, the quantity and denominations of currency recovered were not indicative of sales, and no buyers were apprehended.
The Court disagrees with petitioners. Not requesting a lesser-included offense instruction is objectively reasonable where that instruction is inconsistent with defendant’s theory of defense. Compare Lopez v. Thurmer, 594 F.3d 584, 588 (7th Cir. 2010) (not requesting lesser-included felony-murder instruction in first-degree murder case was reasonable where such instruction was inconsistent with defendant’s testimony that he was “innocent of any crime”), and Wilson v. Cockrell, 70 F. App’x 219, 228 (5th Cir. 2003) (not requesting lesser-included murder instruction in capital-murder case was “legitimate strategic choice” where such instruction was inconsistent with defense theory that defendant did not murder the victim), and Neal v. Acevedo, 114 F.3d 803, 806 (8th Cir. 1997) (not requesting lesser-included offense instruction in first-degree kidnapping case was reasonable where such instruction was inconsistent with alibi defense), with Breakiron v. Horn, 642 F.3d 126, 138 (3d Cir. 2011) (not requesting lesser-included theft instruction in robbery case was unreasonable where such instruction was consistent with defense theory that defendant only committed theft, not robbery), and Richards v. Quarterman, 566 F.3d 553, 569-70 (5th Cir. 2009) (not requesting lesser-included aggravated assault instruction in murder case was unreasonable where such instruction was consistent with theory of self-defense).
Gamburg and Santaguida’s arguments at trial make clear that petitioners did not concede possession because they wanted an acquittal. Trial counsel’s strategy on this point differed slightly since the government argued that Ware was in physical possession of the drugs, while Stevens only held the money. Santaguida argued, on behalf of Ware, that the government had not proven that the bag of drugs recovered was actually dropped by Ware. See e.g., Trial Tr. 23:9-13, Aug. 4, 2009 (“[T]he officers are telling us, that the drugs were dropped by Andre Ware, were his fingerprints on it? No. Why didn’t they get his fingerprints? I don’t know.”); id. at 24:4 (“Did he throw the drugs on the floor? I don’t know. That’s another thing. The drugs that they said they found, supposedly thrown by Mr. Ware, who sees them?”); id. at 24:13 (“There’s a reasonable doubt that even the drugs that were found were possessed, but surely if they were possessed they weren’t possessed with intent to deliver.”). On the other hand, Gamburg, on behalf of Stevens, argued that the money recovered on Stevens’s person was not consistent with either possession or intent to deliver. Id. at 29:9 (“He had a 20, a ten, a five and seven ones. You’re going to ask yourself is that consistent with aiding and abetting or with somehow participating in drug activity?” (emphasis added)). Trial counsel’s testimony at the evidentiary hearing confirms this all-or-nothing strategy. Santaguida testified that, “[N]obody ever said that [petitioners] had the drugs. So, if they didn’t have the drugs, they couldn’t have had them for their own personal use.” Evid. Hr’g Tr. 16. Gamburg testified that the small quantity of drugs recovered was not part of his strategy because “Stevens never had drugs on him or admitted that he had drugs.” Id. at 69-70.
It is unclear whether Santaguida and Gamburg made a strategic choice not to request a lesser-included instruction. The relevant question, however, “is not whether counsel’s choices were strategic, but whether they were reasonable.” Flores-Ortega, 528 U.S. at 481. In this case, the Court concludes counsel were reasonable. Requesting a simple possession instruction would have been inconsistent with trial counsel’s theory of defense that petitioners did not possess the drugs and that Officer Myers’s testimony was wholly incredible. Under the circumstances, the Court concludes that not requesting a lesser-included offense instruction did not fall below an “objective standard of reasonableness.” Strickland, 466 U.S. at 689; see Tinsley v. Million, 399 F.3d 796, 808 (6th Cir. 2005) (“[I]t was a permissible exercise of trial strategy not to request [lesser-included instructions of first-degree and second-degree manslaughter] given that [counsel’s] primary line of defense was that [defendant] was not the shooter.); Ashe v. United States, No. 04-cv-3115, 2011 WL 1230830, at *7 (D. Md. Mar. 29, 2011) (“Had counsel sought a lesser included instruction, it might have effectively presented the jury with two rather inconsistent scenarios: the drugs were not [the defendant’s], but if they were, he did not intend to distribute them.”).
Furthermore, assuming arguendo that Gamburg or Santaguida’s failure to request an instruction on possession fell below an “objective standard of reasonableness, ” petitioners have not shown that the failure resulted in prejudice. This was a “one-witness case.” Evid. Hr’g Tr. 193. Officer Myers’s testimony that he observed two drug sales was the government’s central evidence on the issues of possession and intent to distribute. By convicting petitioners, the jury “clearly accepted” Officer Myers’s testimony, and that evidence alone was sufficient to convict petitioners. Ware, 450 F. App’x at 96 (“[T]he jury clearly accepted Officer Myers’s testimony about the observations [of drug sales] . . . [T]hat evidence was sufficient to establish Ware’s guilt beyond a reasonable doubt.”). In order for the jury to have found petitioners guilty only of possession, they would have had to discredit that part of Officer Myers’s testimony regarding the observed sales. Providing the jury with the option of finding simple possession, however, would in no way have affected Officer Myers’s credibility. Thus, the Court concludes that petitioner has not shown “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
2. Failure of counsel for both petitioners to call an expert witness on drug packaging, trafficking, and usage
Petitioners argue that counsel was ineffective for failing to call an expert witness on drug packaging, trafficking and usage to present evidence consistent with the theory that the drugs recovered in this case were for personal use rather than distribution.
The Court rejects this argument. Generally, deciding which witnesses to call is “precisely the type of strategic decision which the Court in Strickland held to be protected from second-guessing.” United States v. Ciancaglini, 945 F.Supp. 813, 823 (E.D. Pa. 1996).
In this case, the record shows that counsel’s decision not to call an expert witness was part of a “sound trial strategy.” Strickland, 466 U.S. at 689. As previously discussed, counsel contested possession. Santaguida concluded that calling an expert in an attempt to prove the drugs were merely possessed, rather than distributed, would not have made sense. Evid. Hr’g Tr. 29 (“I mean, I’d have to have a reason [to hire an expert], what would be the reason? [Petitioners] didn’t have the drugs, right?”). The only other purpose for calling an expert would have been to contest the government’s evidence of petitioners’ intent to distribute. But, as Santaguida testified at the evidentiary hearing, the government was not arguing that the quantity of drugs was indicative of intent to distribute; rather, the government’s evidence of such intent was based on the two transactions Officer Myers observed. Id. at 49-50 (“I don’t think anybody was arguing that the amount of drugs in of itself was intent to distribute . . . in [this] case the officer said, I saw two transactions. So how are you going to -- what’s [the expert] going to say, there were no transactions?”).
It was reasonable for counsel to have decided to attack Officer Myer’s testimony rather than use an expert to disprove a point that the government was not making. Accordingly, the Court concludes trial counsel’s decision not to call an expert witness did not fall below an “objective standard of reasonableness.” Strickland, 466 U.S. at 689.
3. Failure of counsel for both petitioners to obtain nighttime pictures of the crime scene or object to the government’s daylight pictures
First, petitioners contend that trial counsel was ineffective for failing to object to the government’s introduction of crime-scene photographs, which were taken during daylight hours, even though the crime took place at night. A failure to object to daylight photographs is not prejudicial if counsel made the jury aware of their limited relevance. United States v. Garvin, 88 F. App’x 542, 544-45 (3d Cir. 2004) (“The photographs were accurate and helped the jury to perceive what was where and to get a sense of the distances involved. . . . [I]nasmuch as the jury knew their limitations, there was no prejudice.”).
In this case, petitioners’ counsel made the jury aware of the fact that the government’s photographs were taken during the daytime even though the crime occurred at night. Officer Myers explicitly testified that the crime occurred at night and explained the lighting conditions. Trial Tr. 50, Aug., 4, 2009 (“[T]here’s actually a light right here in front of -- it was, the lighting was fairly good considering that it was dark out. There was plenty of light, the bar was illuminated, there’s a streetlight over the top of the intersection . . . . ”). Santaguida cross examined Officer Myers on the lighting conditions, asking Officer Myers to mark the place on the government’s photograph where petitioners were standing and point out the distance between the mark and the nearest street light. Id. at 73-74. Accordingly, the Court concludes that there was no prejudice to petitioners because the jury was made aware of the limited import of the government’s daylight photographs.
Second, petitioners argue counsel was ineffective for failing to investigate the scene and obtain nighttime pictures of their own to introduce. Stevens Mot. 21-22; Ware Mot. 2-6. Such evidence was crucial, argue petitioners, because it would have contradicted Officer Myers’s testimony regarding the observed drug sales. Ware Mot. 6. The relevant question is “whether counsel exercised reasonable professional judgment” in deciding not to obtain such photographs. Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005) (internal quotation marks omitted).
In this case, Gamburg testified at the evidentiary hearing that his strategy with regard to the photos was “to cross-examine the Government’s witnesses and their photographs, and then argue it to the jury.” Evid. Hr’g Tr. 78. Santaguida testified similarly, stating that he “probably rel[ied] on the common sense of the jury to know it’s different at 10:00 o’clock than it is at 2:00 o’clock in the afternoon.” Id. 53. In fact, Santaguida indeed made that exact argument in his closing arguments at trial, asking the jury, “Why did [the government] take these pictures in broad daylight? Why didn’t they take them 9:30 at night so that you could take an opportunity to see what you can and what you can’t see. . . . How are [the officers] going to see if somebody opened their door to this car . . . from here at 9:30 at night? . . . Use your common sense.” Trial Tr. 21, Aug., 5, 2009. The Court concludes that counsel exercised “reasonable professional judgment” in deciding to appeal to the jury’s common sense rather than introduce their own nighttime photographs of the crime scene. Jacobs, 395 F.3d at 102.
4. Cumulative Error
Petitioner Ware argues that even if no individual error prejudiced him, the cumulative effect of such errors did. The Court disagrees. “[A] cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007) (quoting Darks v. Mullin, 327 F.3d 1001, 1018 (10th Cir. 2003)). “Cumulative errors are not harmless if they had a substantial and injurious effect or influence in determining the jury's verdict, which means that a habeas petitioner is not entitled to relief based on cumulative errors unless he can establish ‘actual prejudice.’” Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Notwithstanding the fact that the Court finds that none of counsel’s actions were “errors, ” even if they were, the Court finds that the cumulative effect still would not amount to “actual prejudice” for petitioner Ware. Id. Even if counsel had requested a lesser-included offense, called an expert to testify, and introduced nighttime photographs, the cumulative effect would not have significantly impacted Officer Myers’s testimony, the central evidence in the case, which was accepted by the jury. Accordingly, the Court concludes petitioner has not shown his counsel’s actions caused “a substantial and injurious effect or influence in determining the jury's verdict.” Id.
5. Failure of Ware’s trial counsel to argue “Forced Abandonment” of the drugs
Petitioner Ware contends that Santaguida was ineffective for failing to make a “forced abandonment” argument during the Court’s suppression hearing for the drugs. A “forced abandonment” refers to “property that is abandoned as a direct result of an unlawful seizure.” United States v. Rivera, 441 F. App’x 87, 89 (3d Cir. 2011). Petitioner contends that had trial counsel made such an argument, the drugs would have been suppressed and an acquittal would have followed. This argument is meritless.
The Fourth Amendment protects individuals from “unreasonable searches and seizures.” U.S. Const. amend. IV. Evidence acquired during an unlawful search or seizure must be suppressed at trial. Rivera, 441 F. App’x at 89. A “seizure, ” occurs either through “physical force or, where that is absent, submission to the assertion of authority.” California v. Hodari D., 499 U.S. 621, 626 (1991). Accordingly, when a defendant disperses evidence prior to being physically seized or submitting to an assertion of authority, such action does not constitute a “forced abandonment.” Rivera, 441 F. App’x at 89-90.
In this case, the evidence at trial shows that Ware was not “seized” at the time he threw the drugs to the ground. Officer Myers testified that he saw Ware begin walking southbound on 17th Street after hearing Stevens yell, “It’s hot, they’re around the corner.” Trial Tr. 59, Aug., 4, 2009. He further testified that he saw Ware discard a bag as officers approached him from behind, but before those officers arrived. Id. at 60. Myers testified that he did not see Ware turn and look at the officers as they approached. Id. at 60. After Ware dropped the bag, he continued walking. Id. at 59. The bag was recovered approximately fifteen feet away from Ware. Id. at 63. Accordingly, the record establishes that Ware had not been physically seized and he had not submitted to authority at the time he dropped the bag. Any argument by Santaguida claiming otherwise would have been fruitless; his failure to do so was neither unreasonable nor prejudicial to petitioner Ware.
Furthermore, even if Ware had been “seized” at the time he dropped the bag, the argument still would have been meritless because the seizure was lawful. Officers may conduct a search incident to a warrantless arrest if the arrest itself is lawful. United States v. Kithcart, 134 F.3d 529, 531 (3d Cir. 1998). A warrantless arrest is lawful if there is probable cause to arrest. United States v. Watson, 423 U.S. 411, 417 (1976). “Probable cause to arrest exists when a reasonable law enforcement officer has cause to believe than an offense has been committed and that the person being arrested committed that offense.” United States v. Shabazz, No. 12-cv-3517, 2013 WL 4017277, at *3 (3d Cir. Aug. 8, 2013).
In this case, the two transactions Officer Myers observed were sufficient to give the officers probable cause to believe that a crime was committed. See United States v. Mackie, 190 F. App’x 178, 180 (3d Cir. 2006) (finding probable cause for arrest where officers saw multiple transactions where defendant would receive money, pick up a baggie, and hand over a small object); United States v. Taylor, 997 F.2d 1551, 1553 (D.C. Cir. 1993) (same). Accordingly, any seizure resulting from a search incident to arrest in this case would have been lawful. Santaguida’s failure to make such a meritless argument did not fall below an “objective standard of reasonableness.” Strickland, 466 U.S. at 689.
6. Failure of counsel for Stevens to request a downward departure during sentencing
Petitioner Stevens argues his counsel was ineffective for failing to request a downward departure at sentencing to account for time served on a state parole violation. The Court disagrees.
The relevant facts are not in dispute. The instant offense occurred on April 18, 2006, at which time petitioner Stevens was on parole for an unrelated state offense. Gov’t Resp. 52. Petitioner was granted bail in the instant case that day. Id. However, due to his arrest in this case, petitioner was arrested and placed in state custody from April 19, 2006 to December 2, 2008 for the parole violation. Id. On October 14, 2008, petitioner was indicted in this case, and, on December 3, 2008, he was transferred to federal custody. Id. He remained in federal custody until his sentencing on December 16, 2009, after which he was returned to state custody. Id. On July 26, 2010, petitioner was sentenced on his state parole violation. He completed that sentence on June 14, 2011, at which time he was returned to federal custody.
At petitioner’s December 16, 2009 sentencing, petitioner’s counsel requested credit for time served, which the Court granted. The Bureau of Prisons credited petitioner Stevens for the day of his arrest — April 18, 2006 — and for all time spent in custody beginning on the date he was transferred to federal custody, December 3, 2008, including the approximately eighteen-month time period that he spent in state custody after his federal sentencing. Petitioner now argues that his counsel was ineffective for failing to request a downward departure under Application Note 3(E) to Guideline Section 5G1.3(c) to account for the period from April 19, 2006, to December 2, 2008, which petitioner spent in state custody prior to sentencing in this case and which was credited to his sentence on the state parole violation.
Application Note 3(C) to Guideline Section 5G1.3(c) of the Guidelines governs cases such as this one where petitioner was on parole at the time of the instant offense and thereafter had his parole revoked. In such cases, the Federal Sentencing Commission recommends that “the sentence for the instant offense be imposed consecutively to the sentence imposed for the [parole] revocation.” See U.S.S.G. § 5G1.3, n.3(C) (2010). The purpose of that provision is to provide an “incremental penalty” for the violation of parole. United States v. Swan, 275 F.3d 272, 283 (3d Cir. 2002) (noting “the Commission's strong preference for imposing a consecutive sentence to the extent necessary to provide an incremental penalty”).
The Court rejects petitioner’s argument that, notwithstanding U.S.S.G. Section 5G1.3, n.3(C) (2010), which recommends a consecutive sentence, his counsel was ineffective for failing to request a downward departure under Application Note 3(E) to Guideline Section 5G1.3(c). That Note provides that “in an extraordinary case involving an undischarged term of imprisonment under [Section 5G1.3(c)], it may be appropriate for the court to downwardly depart” to account for “a period of imprisonment already served on the undischarged term of imprisonment.” U.S.S.G. § 5G1.3, n.3(E) (2010). The example given for application of Note 3(E) demonstrates that a downward departure would not have been appropriate in this case. That Note states that a downward departure may be warranted, “for example, in a case in which the defendant has served a very substantial period of imprisonment on an undischarged term of imprisonment that resulted from conduct only partially within the relevant conduct for the instant offense.” Id. In this case, however, petitioner’s undischarged term of imprisonment did not result from conduct that was within the relevant conduct for the instant offense and the sentence petitioner received — 96 months — was “a reasonable incremental punishment for the instant offense of conviction.” U.S.S.G. § 5G1.3, n.3(E) (2010); see United States v. Garcia-Hernandez, 237 F.3d 105, 108 (2d Cir. 2000).
The Court concludes it would not have granted petitioner’s request for a downward departure had it been made. Consequently, counsel’s failure to request a downward departure did not prejudice petitioner.
For the foregoing reasons, the Court denies defendant Jerry Stevens’s Motion Under 28 U.S.C. § 2255 and defendant Andre Ware’s Amended Motion Under 28 U.S.C. § 2255. An appropriate order follows.
AND NOW, this 2nd day of December, 2013, upon consideration of defendant Jerry Stevens’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Document No. 192, filed February 8, 2013), defendant Andre Ware’s Amended Motion Under 28 U.S.C. § 2255 (Document No. 196, filed April 16, 2013), and Government’s Consolidated Response to Defendants’ Motions Under 28 U.S.C. § 2255 (Document No. 199, filed May 16, 2013), following a hearing on September 24, 2013, for the reasons set forth in the Memorandum dated December 2, 2013, IT IS ORDERED that defendant Jerry Stevens’s Motion Under 28 U.S.C. § 2255 and defendant Andre Ware’s Amended Motion Under 28 U.S.C. § 2255 are DENIED.