United States District Court, Middle District of Pennsylvania
Christopher C. Conner, Chief Judge
Presently before the court in the above-captioned matter is petitioner DeShawn Livingston’s (“Livingston”) pro se motion to vacate, set aside, or correct his sentence (Doc. 515) pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. For the reasons that follow, Livingston’s motion will be denied in part. However, the court will defer ruling on the remaining claim pending an evidentiary hearing on the issue of the effective assistance of counsel during plea negotiations.
I. Factual Background and Procedural History
On February 25, 2009, Livingston was indicted for (1) criminal conspiracy in violation of 18 U.S.C. § 371, (2) Hobbs Act robbery in violation of 18 U.S.C. § 1951, (3) possession of a firearm in furtherance of crimes of violence in violation of 18 U.S.C. § 924(c)(1), and (4) possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). (Doc. 1). On March 17, 2009, Livingston entered a plea of not guilty to all charges. (Doc 56). Livingston subsequently filed a motion to suppress (Doc. 211), claiming, inter alia, that law enforcement’s entry into his apartment and the subsequent seizure of a firearm violated the Fourth Amendment. (Doc. 211 ¶¶ 3-5).
The court held a suppression hearing on January 22 and February 19, 2010. (See Doc. 257). At the hearing, the government offered evidence that Livingston’s then-girlfriend, Anneliese Scherrer (“Scherrer”), contacted the police on April 20, 2008 with a domestic violence complaint. (Doc. 257 at 4). One of the responding officers, Richard Wilson, testified that Scherrer lived in an apartment with Livingston, whom she described as violent. (Id. at 4-6, 14-15). Scherrer also informed the officers that Livingston always slept within reach of a handgun. (Id. at 6, 9). Without prompting, Scherrer provided officers with a key and a detailed description of the apartment. (Id. at 6-10). The officers then used this key to enter the apartment and arrest Livingston. (Id. at 11-13). The government also introduced evidence to show that the seized firearm was obtained during a search incident to Livingston’s arrest. (Id. at 12-13, 31-33, 38-39). By memorandum and order dated April 30, 2010, the court denied the motion to suppress with respect to the initial entry and the firearm. (Doc. 291).
On August 17, 2010, Livingston proceeded to a jury trial. (Doc. 388). The jury returned a guilty verdict on August 26, 2010 on all counts. (Doc. 403). On January 13, 2011, the court sentenced Livingston to 461 months imprisonment, $5,000 restitution, and five years of supervised release. (Doc. 466). On January 18, 2011, Livingston appealed his conviction and sentence on several grounds, including the denial of his motion to suppress. (Doc 467). The Third Circuit Court of Appeals denied the appeal and affirmed the court’s judgment on September 27, 2011. (Doc. 506); see United States v. Livingston, 445 F. App’x 550 (3d Cir. 2011). Livingston filed a petition for writ of certiorari, which the United States Supreme Court denied on April 30, 2012. See Livingston v. United States, 132 S. Ct. 2100 (2012). On May 2, 2013, Livingston timely filed the instant motion (Doc. 515) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel. The motion has been fully briefed and is ripe for disposition.
II. Legal Standard
A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 is the appropriate vehicle by which a defendant in federal custody may challenge the legality of a conviction or sentence. See 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). When reviewing a motion to vacate, the court must accept the truth of the petitioner’s factual allegations unless clearly frivolous based on the existing record. Gov’t of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). However, the court is required to order an evidentiary hearing “unless the motion and files and records of the case show conclusively that the [petitioner] is not entitled to relief.” Id.; see also 28 U.S.C. § 2255(b).
The Sixth Amendment right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). This right to effective assistance of counsel also extends to the first appeal. Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir. 2004). In Strickland, the Supreme Court articulated a two-prong test in assessing whether a petitioner has been denied the effective assistance of counsel. Strickland, 466 U.S. at 687-88. A petitioner must demonstrate: (1) that his or her counsel’s representation “fell below an objective standard of reasonableness” and (2) that such defective performance caused the petitioner prejudice. See id.
In evaluating the first prong of the Strickland test, the court must be “highly deferential” toward counsel’s conduct. Id. at 689. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Id. (“It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”). “Strickland and its progeny make clear that counsel’s strategic choices will not be second-guessed by post-hoc determinations that a different trial strategy would have fared better.” Rolan v. Vaughn, 445 F.3d 671, 681-82 (3d Cir. 2006) (citing Strickland, 446 U.S. at 689). Notably, courts will not deem counsel ineffective for failing to raise a meritless argument. Strickland, 466 U.S. at 691; United States v. Saunders, 165 F.3d 248, 253 (3d Cir. 1999).
To satisfy the prejudice prong, the petitioner must show that there is a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Moreover, the petitioner must show that he or she had a reasonable likelihood of prevailing on the motion at issue, and having prevailed on the motion, it was also reasonably likely that the result of the trial would have been different. See Thomas v. Varner, 428 F.3d 491, 502 (3d Cir. 2005).
To prevail on a claim for ineffective assistance of counsel, a petitioner must satisfy both prongs of the Strickland test. Carpenter v. Vaughn, 296 F.3d 138, 149 (3d Cir. 2002). The inquiry may begin with either the deficient performance or prejudice prong, and the court is not required to considered the second prong of the test if the petitioner is unable to satisfy the first one. Strickland, 466 U.S. at 697.
In the instant motion, Livingston alleges ineffective assistance of counsel on the following grounds: (1) his appellate counsel failed to argue alternative theories to suppress the warrantless arrest and search and seizure of evidence; (2) his trial counsel also failed to raise other arguments in the initial suppression hearing; (3) his trial counsel did not move the court for a severance of Livingston’s trial from his co-defendant’s trial; and (4) his trial counsel threatened to withdraw and misled Livingston regarding the merits of his ...