United States District Court, M.D. Pennsylvania
SYLVIA H. RAMBO, District Judge.
Before the court is a motion for writ of habeas corpus filed pursuant to 28 U.S.C. § 2255 by Defendant Larnell Morrison. Morrison alleges that at the time of his sentencing, his court appointed counsel, Dennis Boyle,  failed to argue against the amount of drugs attributed to him based on relevant conduct. He also claims that counsel was incompetent for not arguing for a sentence in the range of 12 to 18 months. The Government has filed a response.
A. Ineffective Assistance 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 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 (3d Cir. 2005).
B. Facts of this Case
Morrison was charged in a two count indictment with two controlled sales of cocaine hydrochloride - one for 13.9 grams and one for 27.5 grams for a total of 41.4 grams. The presentence report, however, attributed to Morrison a total of 721.8 grams (Presentence Report at ¶ 9). Morrison alleges that the extra drugs attributed to him through relevant conduct was improper because he did not receive discovery as to this evidence as promised by the Government. He further alleges that because of this failure, his sentence should be lowered. At the guilty plea proceeding, however, the following discussion occurred:
MR. BEHE: But Mr. Bosch is stating that, to the extent that relevant conduct may increase the amount, then therefore what his offense level would be, they're not admitting to anything beyond the half ounce and ounce.
THE COURT: Is the Government seeking anything beyond that?
MR. BEHE: We may, depending on how - he's a career offender, I believe. And the information that we had from the multiple sources was that Mr. Morrison was involved in the unlawful distribution of half ounce and ounce amounts of ...