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United States v. Cobb

United States District Court, E.D. Pennsylvania

September 9, 2014

JONATHAN COBB Criminal Action No. 09-733-01


EDUARDO C. ROBRENO, District Judge.

Petitioner Jonathan Cobb ("Cobb" or "Petitioner") seeks habeas relief, pursuant to 28 U.S.C. § 2255, based on a claim that his trial counsel, William Cannon, Esq. ("Counsel"), [1] was ineffective, in violation of Petitioner's Sixth Amendment right to representation by counsel. Respondent, the United States Government, asserts that Petitioner's claims lack merit and that Counsel was not ineffective under the standard outlined in Strickland v. Washington , 466 U.S. 668, 671 (1984). Petitioner raises a supplemental Sixth Amendment claim, under Alleyne v. United States , 133 S.Ct. 2151 (2013). While the Government has failed to respond to this supplemental claim, the Court proceeds to address the merits of the claim in light of the Third Circuit's recent holding in United States v. Reyes , 755 F.3d 210 (3d Cir. June 18, 2014), that Alleyne does not apply retroactively to cases on collateral review.


Petitioner was arraigned on the First Superseding Indictment, ECF No. 81, on April 29, 2010, for one count of conspiracy to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B), and one count of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B), and aiding and abetting, in violation of 18 U.S.C. § 2. At his April 29, 2010 arraignment, Petitioner entered a plea of not guilty.

Following a five-day trial, the jury convicted Petitioner and co-conspirator David Cobb on all counts.[2] Petitioner was sentenced to 288 months' imprisonment, 8 years supervised release, and a $2, 500 fine. District Court Judgment 1, ECF No. 186. On November 10, 2010, Petitioner filed a Notice of Appeal through Counsel. Pet'r's Notice of Appeal 1, ECF No. 186. On May 25, 2012, the Third Circuit affirmed the decision of the District Court as to both Petitioner and David Cobb. Third Circuit J. 2, ECF No. 215.

On August 15, 2013, Petitioner filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255. See Mot. to Vacate/Set Aside/Correct Sentence, ECF No. 218 [hereinafter "§ 2255 Pet."]. On October 23, 2013, the Court directed the Clerk of Court to provide Petitioner with a blank copy of the Court's current standard form for filing a § 2255 petition, ECF No. 225, and on January 10, 2014, Petitioner resubmitted his § 2255 habeas petition on the proper form, ECF No. 227.

The Government submitted a response in opposition to the § 2255 petition on February 28, 2014, ECF No. 230. Petitioner filed a pro se supplemental brief in support of his pending habeas petition on March 3, 2014, ECF No. 231. Additionally, Petitioner filed a pro se reply to the Government's response in opposition on April 10, 2014, ECF No. 234. Petitioner's § 2255 habeas petition is now ripe for disposition.


A violation of a criminal defendant's Sixth Amendment right to effective assistance of counsel can form the basis of a § 2255 petition. See Strickland v. Washington , 466 U.S. 668, 686, 697 (1984). Such a claim of ineffectiveness of counsel attacks "the fundamental fairness of the proceeding." Id. at 697. Therefore, as "fundamental fairness is the central concern of the writ of habeas corpus, " "[t]he principles governing ineffectiveness should apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial." Id . Those principles require a convicted defendant to prove two elements: (i) that his counsel's performance was deficient, and (ii) that the deficient performance prejudiced his defense. Id. at 687; Holland v. Horn , 519 F.3d 107, 120 (3d Cir. 2008).

To prove deficient performance, a convicted defendant must show that his "counsel's representation fell below an objective standard of reasonableness." Ross v. Dist. Attorney of Allegheny , 672 F.3d 198, 210 (3d Cir. 2012) (quoting Harrington v. Richter , 131 S.Ct. 770, 787 (2011)). The court's "scrutiny of counsel's performance must be highly deferential." Douglas v. Cathel , 456 F.3d 403, 420 (3d Cir. 2006) (citing Strickland , 466 U.S. at 689). Accordingly, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Grant v. Lockett , 709 F.3d 224, 234 (3d Cir. 2013) (quoting Strickland , 466 U.S. at 689). When raising an ineffective assistance claim, the convicted defendant first must identify which acts or omissions by counsel are alleged to not result from "reasonable professional judgment." Strickland , 466 U.S. at 690. Next, the Court must determine whether or not those acts or omissions fall outside the "wide range of professionally competent assistance." Id.

To prove prejudice, a convicted defendant has the burden to prove that acts or omissions "actually had an adverse effect on the defense." Id. at 693. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.


Cobb initially filed a timely[3] petition seeking relief under § 2255 based on four distinct claims of ineffective assistance of his trial counsel, none of which were raised during his direct appeal.

Although a § 2255 petitioner may not generally raise new arguments for the first time on a collateral appeal that were not raised in the direct appeal, see Hodge v. United States , 554 F.3d 372, 379 (3d Cir. 2009), ineffective assistance of counsel claims are exempted from this procedural default rule, and therefore the Court may consider the pending claims. See Massaro v. United States , 538 U.S. 500, 504 (1998).

This four-claim petition, along with a supplemental brief raising a fifth claim for habeas relief based on the recent Alleyne holding, raises a total of five theories under which Petitioner is entitled to habeas relief.

A. First Claim: Failure to Inform Petitioner of 21 U.S.C. § 851 Notice and to Challenge the Notice

Petitioner first asserts that Counsel was ineffective for failing to notify Petitioner of the Government's intention to file a notice, pursuant to 21 U.S.C. § 851, of the prior convictions that the Government would rely upon in seeking an enhanced sentence for Petitioner.[4] See Memorandum of Law and Authorities in Supp. of Pet'r's § 2255 Mot. to Vacate, Set-Aside, or Correct Conviction or Sentence Under 28 U.S.C. § 2255 ("§ 2255 Mem.") 3, ECF No. 227. Petitioner claims that Counsel's performance was deficient because Counsel failed to: (i) notify Petitioner of the Government's intention to file ...

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