United States District Court, W.D. Pennsylvania
MAURICE B. COHILL, Jr., Senior District Judge.
Pending before the Court is Petitioner Eric Demond Holcomb's Motion to Vacate, Set Aside, or Modify Sentence under 28 U.S.C. § 2255, filed at Criminal No. 07-400, with Brief in Support. ECF Nos. 85 & 86. The government has filed a Response to the Motion (ECF No. 87), to which Mr. Holcomb has filed a Traverse (ECF No. 89). In addition, Mr. Holcomb has filed Supplemental Citation of Authority (ECF No. 90), to which the government has filed a Response (ECF No. 91). Mr. Holcomb contends in his motion, among other things, that his counsel was ineffective. Because we find that his counsel was ineffective, we will grant the motion.
The parties are familiar with the background and issues in this case. Therefore, we will recount only the essential facts necessary for resolution of the motion.
On November 13, 2007, a grand jury indicted Mr. Holcomb with two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Mr. Holcomb retained George Bills, Esquire, as his counsel.
An arraignment hearing was held on November 15, 2007, at which Mr. Holcomb entered a plea of not guilty. Arraign. Tr., 11/15/2007, 3. At this hearing, counsel for the Government, Craig Haller, explained to Mr. Holcomb the maximum sentencing exposure stated in the Indictment Memorandum filed in this case, as follows.
MR. HALLER: Do you understand that the maximum penalties for each count in the indictment is a term of imprisonment of up to ten years, fine of $250, 000 and three years supervised release for each count?
MR. HOLCOMB: Yes.
Id. The Indictment Memorandum filed in this case stated in relevant part as to the possible penalties, as follows:
A. As to Counts 1 and 2: Possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1) (as to each count):
1. A term of imprisonment of not more than ten (10) years....
Indictment Mem. 2.
On December 19, 2007, Mr. Bills filed a motion to have the Probation Office prepare a pre-guilt presentence investigation report in order to obtain an accurate determination of Mr. Holcomb's prior criminal record. ECF No. 21. The preliminary presentence investigation report concluded that Mr. Holcomb would not be subject to enhanced penalties as a Career Offender under U.S.S.G. § 4B1.1 or as an Armed Career Criminal under 18 U.S.C. § 924(e). At this time the Probation Office reported that the maximum statutory penalty upon conviction would be ten years.
In May 2008, Mr. Bills filed a motion to dismiss Count 2 of the Indictment, a motion to sever the counts, a motion to suppress Count 1, and a motion to suppress Count 2. An evidentiary hearing on the motions was held on July 31, 2008. At the close of the hearing, we orally denied the motion to sever and the motion to suppress directed at Count 2. We took the remaining two motions under advisement. On August 29, 2008, we issued an Opinion in which we denied the remaining two motions. A jury trial was set for September 8, 2008, however, we moved the trial to November 10, 2008, to accommodate the fact that government counsel was already set to begin a trial in another courtroom. Mr. Bills then sought a continuance in order to review audio of recorded telephone calls, interview a parole officer, and interview Mr. Holcomb's ex-girlfriend. We granted his motion and the trial was continued to January 12, 2009.
On the day set for jury trial Mr. Bills informed the Court that Mr. Holcomb had decided to enter a plea of guilty, without a plea agreement, to both counts of the Indictment. Accordingly, instead of proceeding with jury selection we conducted a plea colloquy with Mr. Holcomb. Plea Tr., 1/12/2009. When discussing the possible maximum statutory penalties with Mr. Holcomb, we stated:
Now... I want to talk to you about the possible penalties here, and we have two that we are concerned about. First of all, what's the statute say that makes this illegal?
Well, the statute calls for a term of not more than ten years. But if it's been determined that you had three previous convictions for [a] violent felony, or a serious drug offense, or both, then the term of imprisonment is not less than fifteen years to a maximum of life imprisonment.
Plea Tr. 10. Regarding sentencing, we stated that:
THE COURT: Do you understand that I won't be able to determine the Guideline sentence for your case until after a presentence report has been completed and you and government have had an opportunity to review it and challenge anything in it that you might disagree with. You understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that the sentence might be different from anything that either your attorney or the U.S. Attorney might have predicted?
THE DEFENDANT: Yes.
THE COURT: You understand that after it's been determined what Guideline applies in a case, the Judge has the authority to impose a sentence that's more severe or less severe than the sentence called for by the Guidelines?
THE DEFENDANT: Yes.
Plea Tr. 12. At the conclusion of the plea colloquy, Mr. Holcomb entered a plea of guilty to both counts. Plea Tr. 17-18.
A full Presentence Investigation Report was prepared and issued by the Probation Office. In Paragraph 22 of the Report, the Probation Officer stated that "[a]ccording to U.S.S.G. § 3D1.2(d), the offenses in Counts 1 and 2 are grouped." PSR, ¶ 22. The base offense level was determined to be 26, to which 2 levels were added because there were more than 3 firearms, and 2 levels were added because one of the firearms had been reported stolen. PSR ¶¶ 24-25. Thus, the Adjusted Offense Level (Subtotal) was 30. PSR ¶ 26. Section 2K2.1 of the Guidelines limits to 29 the maximum offense level that can be reached by applying 2K2.1's subsections, and thus the Adjusted Offense Level before adjustments were applied was 29. PSR ¶ 27.
Under Specific Offense Characteristics, 4 levels were added to the adjusted offense level of 29 pursuant to section 2K2.1(b)(6) because the probation office determined that the Mr. Holcomb used or possessed the firearm in connection with another felony offense. PSR ¶ 28. This increased the Adjusted Offense Level to 33, which was then reduced by 2 levels for acceptance of responsibility, and an additional 1 level for the timeliness of the acceptance of responsibility. PSR ¶¶ 33-36. Thus, the Total Offense Level was determined to be 30. PSR ¶ 37.
Defendant's Criminal History Category was determined to be VI. PSR ¶ 64. With an offense level of 30 and a criminal history of VI, the applicable advisory guideline range was reported to be 168 to 210 months. PSR ¶107. In addition, the Probation Officer stated in the Sentencing Options section of the Report, with reference to "Statutory Provisions, " that the "maximum term of imprisonment is 10 years, pursuant to 18 U.S.C. § 922(g)(1) and § 924(a)(2)." PSR ¶ 106.
Both the government and the defense filed objections to the Presentence Report. Gov. Position With Respect to Presentence Report, ECF No. 56; Def. Position With Respect to Sentencing Factors, ECF No. 58. The government filed its objections on February 26, 2009, and argued that the total offense level should be 31, instead of 30. Gov. Position, ¶ 2(A). The government objected to the 1-level decrease for the timeliness of acceptance of responsibility because Mr. Holcomb did not inform the government of his intention to plead until the day set for jury selection. Gov. Position, ¶ 2(A). Thus, the government argued that the total offense level should be 31, which would increase the advisory guideline range from 168 to 210 months, to 188 to 235 months. Gov. Position, ¶ 2(B).
The Probation Officer concurred with the government's objection agreeing that the total offense level is 31 instead of 30 and the applicable advisory guideline range would therefore also change to 188 to 235 months. Addendum, 3/12/2009, 1. In its concurrence the Probation Officer also stated: "However, it is noted that there is a statutory maximum of 10 years (120 months) in this case." Id.
The government also objected to the Probation Officer's statement of the Statutory Provisions regarding Sentencing Options, as follows:
The statutory maximum term of imprisonment (listed in paragraph 106) should be changed from 10 years to 20 years. The defendant was convicted of counts one and two of the indictment. A ten-year statutory maximum term of imprisonment applies to each of those counts.
Gov. Position, ¶ 2(C). The Probation Officer concurred with this objection, specifically noting that in the Sentencing Options section, the penalties noted apply at each count. Addendum, 1. The Probation Officer, however, did not explicitly state in the Addendum that the maximum statutory sentence in this case was 20 years, and as discussed below the Probation Officer persisted with a recommendation of imposing a ...