United States District Court, W.D. Pennsylvania
ARTHUR J. SCHWAB, District Judge.
After numerous letters to the Court, Defendant now files a Motion under 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. In his Petition, he alleges that he is dissatisfied with the Federal Bureau of Prison's (BOP) alleged decision to credit the approximately two (2) years he spent in state and federal custody prior to his February 2010 federal sentencing toward his Alabama state parole sentence and not toward his federal sentence. On August 17, 2009, Pearson pled guilty to interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952(a)(2). He was sentenced by this Court on February 4, 2010 to 121 months in prison. At the time Pearson committed the instant federal offense, he was on state parole as a result of a prior armed robbery conviction in Alabama. Alabama detained Pearson in early 2008 for a parole violation after he committed the federal crime but before he was federally indicted. Therefore, Pearson appeared in federal court following his indictment pursuant to a writ that was issued to transfer him from state custody into federal custody. Pearson's projected federal release date is November 10, 2018. Apparently, Pearson believes that his projected federal release date should be in 2016.
On January 23, 2013, Pearson sent a letter to the Court seeking credit for time served. On February 8, 2013, the law clerk responded to Defendant explaining that while the Court does not respond to letters, the Court noted that his request was "best directed to the Bureau of Prisons in the Eastern District of Arkansas as the Bureau of Prisons has the jurisdiction over sentencing calculations and credit for time served."
On September 4, 2013, Defendant filed a Motion to Correct Sentence (doc. no. 250), and this Court denied his Motion by Text Order, on September 6, 2013, stating that, "this Court is without jurisdiction to address issues related to credit for time served, as this is properly within the purview of the Federal Bureau of Prisons (BOP). To the extent Defendant seeks that this Court deduct' 24 months from his current sentence, said Motion is DENIED." See Text Order of 09/06/14.
On May 28, 2014, Defendant sent another letter (deemed as a motion) seeking a sentencing adjustment for "two years jail credit" and seeking it should be credited to his federal sentence. Doc. No. 252. On June 2, 2014, the Court denied the Motion explaining that calculations of time served are within the jurisdiction of the Federal Bureau of Prisons. The Court also noted that Pearson has not exhausted his available administrative remedies within the Bureau of Prisons, as is required, Bradie v. Warden , 2009 WL 3415163 (D.N.J. October 21, 2009). Doc. No. 253.
On July 22, 2014, Pearson filed the instant motion, more than one year after his conviction became final.
Section 2255, 28 U.S.C. § 2255 provides, in relevant part:
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
Whether to conduct a hearing is within the sound discretion of the district court. United States v. Day , 969 F.2d 39, 41 (3d Cir. 1992), quoting Government of the Virgin Islands v. Forte , 865 F.2d 59, 62 (3d Cir.1989), cert. denied 500 U.S. 954 (1991). In exercising that discretion, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record. Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief." Day, 969 F.2d at 41-42 (citation omitted). See also Rules Governing Section 2255 Proceedings, Rules 4 and 8. The Court should view the factual allegations in the light most favorable to the petitioner. Government of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d Cir. 1994) (district court erred in failing to conduct evidentiary hearing on petitioner's non-frivolous allegations of ineffective assistance of counsel) (subsequent history omitted).
For Pearson to establish counsel was ineffective, he must show counsel's performance (i) was in fact deficient and (ii) that the deficient performance so prejudiced the defense as to raise doubt to the accuracy of the outcome of the trial [or the sentence]; i.e., petitioner must demonstrate a reasonable probability that, but for counsel's deficiency, the outcome of the trial [or sentence] would have been different. Strickland v. Washington , 466 U.S. 668, 687, 692 (1984). Counsel's conduct presumptively "falls within the wide range of reasonable professional assistance, " and the defendant "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Id. at 689-90 (citation omitted). On the other hand, the mere fact that counsel's challenged performance or tactic can be called "strategic" in the sense it was deliberate, does not answer the dispositive question of whether that decision or tactic fell within the wide range of "reasonable professional assistance." Davidson v. United States, 951 F.Supp. 555, 558 (W.D.Pa. 1996), quoting Government of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1431-32 (3d Cir.), cert. denied 117 S.Ct. 538 (1996). "Reasonable trial strategy must, by definition, be reasonable." Davidson, 951 F.Supp. at 558.
Counsel's strategy must be judged by a standard of reasonableness based on the prevailing norms of the legal profession. Berryman v. Morton , 100 F.3d 1089, 1094 (3d Cir. 1996) ( Strickland standards for claims of ineffective assistance of counsel unchanged under Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214). Ineffective assistance of counsel will not be found simply because, with the assistance of hindsight, the reviewing court disagrees with counsel's strategy. Green v. Johnson , 116 F.3d 1115, 1122 (5th Cir. 1997).
In the context of a Section 2255 petition for collateral relief, the United States Court of Appeals for the Third Circuit has offered the following guidance:
The... test for determining whether a hearing should be held on an ineffectiveness claim is slightly altered by the Strickland holding. Our analysis of allegations of ineffectiveness of counsel breaks down into two parts. First, we must determine whether the district court considered as true all of appellant's nonfrivolous factual claims. This step requires that we review whether the district court properly found certain allegations frivolous. Second, we must determine whether, on the existing record, those claims that are nonfrivolous conclusively fail to show ineffective assistance of counsel. To evaluate claims under this second step, we must turn to both prongs of the Strickland test. If a nonfrivolous claim clearly fails to demonstrate either deficiency of counsel's performance or prejudice to the defendant, then the claim does not merit a hearing. If, on the other hand, a claim, when taken as true and evaluated in light of the existing record, states a colorable claim for relief under Strickland , then further factual development in the form of a hearing is required. That is, if a nonfrivolous claim does not conclusively fail either prong of the Strickland ...