United States District Court, W.D. Pennsylvania
ARTHUR J. SCHWAB, District Judge.
Before the Court is Petitioner Joseph Dees' pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (doc. no. 173), his Motion to Appoint Counsel (doc. no. 175), and his Motion to Amend his Original Motion to Include "Argument #7" (doc. no. 181). After careful consideration of Petitioner's Motions and Brief in Support, the Government's Responses thereto, and Petitioner's Reply, and the entire record in the case, including the trial transcript of this matter and the sentencing/re-sentencing hearings, the Court will grant Petitioner's Motion to Amend (doc. no. 181), will deny his Motion to Appoint Counsel, (doc. no. 175) and will deny Petitioner's All-Inclusive Motion for Relief pursuant to 28 U.S.C. § 2255 (doc. nos. 173 and 182).
II. Procedural Background
On May 17, 2011, Petitioner was indicted and charged with Possession with Intent to Distribute Less Than 500 Grams of a Mixture and Substance Containing a Detectable Amount of Cocaine, a Schedule II Controlled Substance, in the Western District of Pennsylvania, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C).
Petitioner pled not guilty, and the well-respected defense counsel Stephen Stallings was appointed to represent him. Doc. No. 15. Attorney Stallings filed several pretrial motions on behalf of Defendant (doc. nos. 30, 32, and 34). After the trial date was set, and ultimately re-set for November 13, 2012, defense counsel filed numerous motions in limine, and he vigorously represented his client during all pretrial proceedings before this Court, including oral argument/conferences thereon.
After review of the docket, the transcripts, and from the independent recollection of this Court, defense counsel represented the interests of defendant in a professional and highly competent manner, and his motions practice was both copious and well-reasoned. At the trial of this matter, which occurred on November 13 and 14, 2012, the Government presented seven witnesses for trial, and defense counsel effectively, although ultimately not successfully, advocated for his client and pursued a skilled cross-examination of the Government witnesses. Defense counsel did not present any evidence in his case in chief. The jury returned a verdict of guilty on the one-count Indictment.
Defense counsel continued to vigorously represent Defendant through the sentencing of this matter, which occurred on July 16, 2013, and on appeal. The Court originally sentenced Defendant to a 105-month term of imprisonment (the high end of the reduced Sentencing Guideline Range) to run consecutive to a sentence imposed by this Court at 11-cr-233, after this Court found in favor of Defendant and against the Government on the issue of whether Defendant was entitled an enhancement on the basis that he was a career offender. Both parties appealed, and the United States Court of Appeals for the Third Circuit affirmed the trial of this matter, and reversed/vacated and remanded for re-sentencing after the Court of Appeals found that Defendant qualified as a career offender. Doc. Nos. 155 and 156. Pursuant to the mandate of the Court of Appeals, the Court was required to re-sentence Defendant with the application of the enhancement under U.S.S.G § 4B1.1(a) for being a career offender, thereby setting the applicable Sentencing Guideline Range at 210 to 240 months.
On October 22, 2014, Attorney Stallings withdrew his representation of Defendant, and attorney David Berardinelli was appointed to represent Defendant. After hearing again from the parties in the form of re-sentencing Memoranda (doc. nos. 167 and 168), on February 20, 2015, the Court re-sentenced Defendant to 210 months incarceration to run concurrent (in part) to the 75 months sentence at Criminal No. 11-233. Defendant did not pursue an appeal of this sentence. Instead, on April 14, 2015, he filed his Petition to Vacate Sentence (doc. no. 173), with supporting documents, including a Motion to Appoint Counsel (doc. no. 175), and a Motion to Amend his Motion to Vacate (doc. no. 181). In Petitioner's Pleadings (doc. nos. 173, and 181), he raises seven (7) grounds in support of his Petition.
III. Standard of Review
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. Lilly, 536 F.3d 190, 195 (3d Cir. 2008); 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 [C]ourt 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 must 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). However, a Section 2255 Motion may be dismissed without a hearing if: (1) its allegations, accepted as true, would not entitle Petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005)(citations omitted).
In order for Petitioner to establish counsel was ineffective, he has the burden to 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 Petitioner "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. ...