United States District Court, M.D. Pennsylvania
CHRISTOPHER C. CONNER, Chief District Judge.
Presently before the court is the pro se motion (Doc. 881) to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255,  filed by petitioner Jose Cruz ("Cruz") on July 2, 2014, wherein Cruz asserts that his counsel rendered ineffective assistance by failing to object to the imposition of a sentencing adjustment. Also pending before the court is Cruz's pro se motion (Doc. 947) to amend his § 2255 petition pursuant to Federal Rule of Civil Procedure 15, wherein Cruz seeks to clarify his ineffective assistance of counsel claim. For the reasons that follow, the court will grant Cruz's motion to amend but will deny Cruz's § 2255 motion, as amended.
I. Factual Background and Procedural History
On April 11, 2012, a federal grand jury returned an indictment charging Cruz and others with multiple drug-related offenses. (Doc. 1). The grand jury thereafter returned a superseding indictment. (Doc. 236). The superseding indictment charged Cruz with seven counts, including distribution and possession with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count IV). (Id.) Cruz pleaded not guilty to all counts in the superseding indictment on August 15, 2012. (Doc. 307). On November 20, 2012, the government filed a written plea agreement in which Cruz agreed to plead guilty to Count IV of the superseding indictment and the parties agreed to recommend at sentencing that the weight of cocaine hydrochloride attributable to Cruz under the Sentencing Guidelines was at least 500 grams but less than two kilograms. (Doc. 395 at 1, 8-9). The agreement also provided that the government would move at sentencing for a three-level reduction in Cruz's offense level if Cruz could adequately demonstrate acceptance of responsibility. (Id. at 7-8). On December 17, 2012, Cruz pleaded guilty to Count IV of the superseding indictment pursuant to the plea agreement. (Doc. 423).
The United States Probation Office prepared a presentence investigation report ("PSR") and initially recommended that Cruz receive a three-level reduction for acceptance of responsibility under § 3E1.1 of the United States Sentencing Guidelines ("U.S.S.G."). Prior to sentencing, the probation officer submitted a revised PSR that recommended no adjustment for acceptance of responsibility on the grounds that Cruz had allegedly engaged in additional criminal conduct while on pretrial release. Without any reduction for acceptance of responsibility, the revised PSR calculated a total offense level of 26.
On May 30, 2013, Cruz proceeded to sentencing. At the hearing, Cruz objected to the manner in which the PSR assigned criminal history points to certain prior state convictions and the PSR's failure to credit Cruz with acceptance of responsibility. (See Doc. 652 at 4:2-6). With respect to the latter issue, the government presented Detective Nicholas Licata ("Detective Licata"), who testified about Cruz's alleged participation in drug trafficking activities on pretrial release, and Probation Officer Michael Raccuia, who testified about Cruz's noncompliance with other pretrial obligations. Cruz's counsel cross-examined both witnesses and argued that a reduction for acceptance of responsibility was warranted under the circumstances. The court overruled both objections, determined that Cruz's offense level was 26 and that his criminal history category was VI, and sentenced Cruz to 120 months' imprisonment on Count IV of the superseding indictment. (See id. at 56:14-22; Doc. 614).
Cruz appealed his sentence. He argued on appeal that the court erred in assigning three criminal history points to his 2001 and 2007 state convictions, respectively, under U.S.S.G. § 4A1.2(k)(1). On March 7, 2014, the United States Court of Appeals for the Third Circuit affirmed the court's judgment in a nonprecedential opinion. United States v. Cruz, 558 F.Appx. 264, 267-68 (3d Cir. 2014). Cruz did not seek further review by the Supreme Court.
During his direct appeal and before his time for filing a petition for certiorari expired, Cruz twice filed § 2255 motions. (Docs. 735, 769). The court dismissed both motions without prejudice on the ground that direct review was still available. (Docs. 738, 771). On July 2, 2014, Cruz filed the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 881). Cruz asserts one ineffective assistance of counsel claim on the basis of counsel's purported failure to object to the imposition of an adjustment under U.S.S.G. § 3C1.3 for commission of an offense while on release. After the court advised Cruz about restrictions on filing second or successive motions under 28 U.S.C. § 2255, Cruz elected to have his motion construed and ruled on under § 2255. (Docs. 889, 903). The government filed a brief in opposition to Cruz's motion, in which it stated that Cruz's offense level was not enhanced under U.S.S.G. § 3C1.3. (Doc. 929). On September 9, 2014, Cruz moved to amend his petition. (Doc. 947). Cruz concedes that his offense level was not adjusted under U.S.S.G. § 3C1.3 but contends that the court improperly denied a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. (See Doc. 947 at 2). Cruz claims that his trial and appellate counsel were ineffective in failing to object to the denial of an acceptance of responsibility reduction in light of the parties' plea agreement and in failing to argue that this denial unconstitutionally subjected Cruz to an increased sentence. (Doc. 947). The motions have been briefed and are ripe for review.
II. Legal Standard
The two-pronged test articulated in Strickland v. Washington, 466 U.S. 668 (1984), governs claims for ineffective assistance of counsel. To prevail on this claim, a petitioner must demonstrate (1) that counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms and (2) that the deficient representation was prejudicial. Id. at 687-88. Conclusory allegations are insufficient to entitle a petitioner to relief under § 2255. See Sepulveda v. United States, 69 F.Supp.2d 633, 639-40 (D.N.J. 1999) (citing Blackledge v. Allison, 431 U.S. 63, 74 (1977)).
In determining whether counsel has satisfied the objective standard of reasonableness in accordance with the first Strickland prong, courts must be highly deferential toward counsel's conduct. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989) (quoting Strickland, 466 U.S. at 689). Only a "rare claim" of ineffectiveness of counsel should succeed "under the properly deferential standard to be applied in scrutinizing counsel's performance." Id. at 711 (citing Strickland, 466 U.S. at 689-90). Counsel will not be deemed ineffective for failing to raise a meritless claim. United States v. Saunders, 165 F.3d 248, 253 (3d Cir. 1999).
To satisfy the prejudice prong, the petitioner must show there is a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694. 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 district court need not carry out its analysis of the two prongs in a particular order or even address both prongs of the inquiry if the defendant makes an insufficient showing in one. Strickland, 466 U.S. at 697. Moreover, when the record affirmatively indicates that a petitioner's § 2255 claim for relief is without merit, the claim may be decided on the record without a hearing. See Gov't of V.I. v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985).
A. Cruz's Motion ...