United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL, District Judge.
We are considering a pro se motion filed by Defendant, Miguel Morris, pursuant to 28 U.S.C. § 2255. (Doc. 83; Doc. 86). Claiming that he received ineffective assistance from his appellate counsel, Defendant asks us to vacate his sentence and restore his right to file a direct appeal. (Doc. 86). For the reasons discussed below, we will deny Defendant's motion.
On April 25, 2012, Defendant was indicted for knowingly and intentionally possessing with the intent to distribute five kilograms or more of cocaine. (Doc. 1). Prior to trial, Defendant sent two letters to the court - one requesting substitute counsel and one requesting to proceed pro se. (Doc. 42; Doc. 43). Defendant's requests arose from his dissatisfaction with his appointed counsel, William Fetterhoff. (Id.). According to Defendant, Fetterhoff was not trustworthy, was not working diligently, and his motions for continuance violated Defendant's speedy trial rights. (Id.). Finding his justifications insufficient, we denied Defendant's request for substitute counsel. (Doc. 79 at 9-10). However, we granted Defendant's request to proceed pro se and appointed Fetterhoff as standby counsel. (Id. at 10). A bench trial was held on December 4, 2012, and Defendant was convicted. (Doc. 51; Doc. 76).
Prior to sentencing, Defendant again filed a motion to dismiss Fetterhoff,  and he requested that we appoint the Federal Public Defenders Office to represent him at sentencing. (Doc. 55). On April 18, 2012, we held a sentencing hearing, during which Defendant confirmed that he wished to pursue his pro se requests. (Doc. 77 at 4-5). We entertained discussion from counsel on the topic - both Fetterhoff and the Government advised that the request was at the discretion of the court. (Id. at 5-6). After this discussion, and subsequent argument on downward variances to Defendant's potential sentence, we sentenced Defendant to 264 months of imprisonment. (Doc. 64; Doc. 74).
Defendant appealed his conviction and sentence. (Doc. 66). The Third Circuit appointed the Federal Public Defenders Office to represent Defendant throughout the appeal. His appointed counsel, however, subsequently sought permission to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). (Doc. 80-2 at 5). In his Anders brief, Defendant's appellate counsel identified, and rejected as frivolous, four arguable grounds for appeal: (1) jurisdiction of the District Court; (2) denial of Defendant's suppression motion; (3) sufficiency of the evidence; and (4) reasonableness of the sentence. (Doc. 80-2 at 6). Defendant filed a pro se brief raising two grounds that he argued were not frivolous: (1) sufficiency of the indictment; and (2) a Sixth Amendment violation due to our refusal to appoint substitute counsel before trial. (Doc. 80-2 at 11-12). The Third Circuit agreed with appellate counsel that all arguable grounds for relief were frivolous. (Doc. 80-2). Accordingly, it granted the motion to withdraw and affirmed the conviction and sentence. (Doc. 80-2 at 22).
Now, in his § 2255 motion, asserting numerous arguments, Defendant claims that his appellate counsel provided ineffective assistance. (Doc. 86; Doc. 86-1).
A. Standard of Review
Under 28 U.S.C. § 2255, a federal prisoner may file a motion challenging his conviction or sentence as being in violation of the federal Constitution or federal law. See Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009). "While issues resolved on direct appeal will not be reviewed again by way of a § 2255 motion, they may, however, be used to support a claim for ineffectiveness. United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (internal citations omitted). Pursuant to Rule 4(b) of the Rules Governing § 2255 proceedings, "[t]he judge that receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion...."
B. Defendant's Ineffective Assistance of Counsel Claims are Meritless
The Due Process Clause of the Fifth Amendment "entitles a [federal] criminal defendant to the effective assistance of counsel on his first appeal as of right." United States v. Cross, 308 F.3d 308, 315 (citing Evitts v. Lucey, 469 U.S. 387, 396 (1985)). The two prong standard of Strickland v. Washington applies to a defendant's claim that his appellate counsel was ineffective. Smith v. Robbins, 528 U.S. 259, 285 (2000). Under this standard, the defendant must first show that counsel's representation was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). "Second, the defendant must show that the deficient performance prejudiced the defense." Id . That is, the defendant "must show there is a reasonable probability'... that his appeal would have prevailed had counsel's performance satisfied constitutional requirements." Cross, 308 F.3d at 315 (quoting Strickland, 466 U.S. at 694).
When a defendant's appellate counsel filed an Anders brief instead of a merits brief, to satisfy the first prong and show that counsel's representation was deficient, the defendant must show that counsel unreasonably failed to discover a nonfrivolous issue and file a merits brief addressing it. Smith, 528 U.S. at 285, 288. In his first attempt to make this showing, Defendant claims that our refusal to appoint counsel to represent him at sentencing violated his Sixth Amendment right to counsel. (Doc. 86 at 4; Doc. 86-1 at 2-5). According to ...